Contracts and Commitments. (a) Schedule 4.15 of the Company Disclosure Schedule contains a list (and. where oral, a summary description) of: (i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000); (ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries; (iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries; (iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession; (v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs; (vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software (vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries; (viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries; (ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and (x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets. (b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contracts.
Appears in 2 contracts
Sources: Stock Acquisition Agreement (Active Network Inc), Stock Acquisition Agreement (Active Network Inc)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 4.15 of 2.13(a) attached hereto, and except for any Exempt Contract (unless a smaller dollar value is specifically provided below), the Company Disclosure Schedule contains is not a list (and. where party to or bound by any written or oral, a summary description) of:
(i) All agreement, arrangement or contract with Pro-Fac, including, without limitation, relating to services or functions that the Company provides to, conducts for, is required to provide to or conduct for Pro-Fac or for Pro-Fac's benefit;
(ii) 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;
(iii) collective bargaining agreement or any other contract with any labor union, or severance agreement, program, policy or arrangement;
(iv) settlement, conciliation or similar agreement;
(v) management agreement or contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis (i) providing annual cash or other compensation in excess of $100,000, (ii) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby, (iii) providing any severance benefits or making any severance arrangements, or (iv) restricting its ability to terminate the employment of any employee at any time for any lawful reason or for no reason without penalty or liability;
(vi) contract or agreement involving any Governmental Entity;
(vii) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material contractsasset or material group of assets of the Company or any letter of credit arrangements, commitmentsor any guarantee therefor;
(viii) agreement under which it has advanced or loaned any amount to any of its directors, officers and employees other than the advance or reimbursement of reasonable business expenses incurred or to be incurred in the ordinary course of business;
(ix) lease or agreement under which the Company is (i) 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 $100,000 or (ii) lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company, except for any lease of personal property under which the aggregate annual rental payments do not exceed $100,000;
(x) 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 the Company upon 60 or fewer days' notice without penalty or involving more than $500,000;
(xi) agreements relating to the ownership of, Investments in or loans and advances to any Person (other than as contemplated by subclause (viii) above), including Investments in joint ventures and minority equity investments;
(xii) agreement, contract or commitment or series of related agreements, leases, licenses, undertakings and other arrangements to which contracts or commitments for the purchase of assets by the Company or any of its Subsidiaries is a partyinvolving consideration in excess of $250,000, or by which the Company or any except with respect to purchase of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation items of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into inventory in the ordinary course of business consistent with past practice custom and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000)practice;
(iixiii) Any Real Property Lease entered into agreement, contract or commitment or series of related agreements, contracts or commitments for the sale of any asset by the Company or any of its Subsidiaries involving consideration in excess of $250,000, except with respect to sales of items of inventory in the ordinary course of business consistent with past custom and practice and not involving delivery of such inventory more than six months after the date of such commitment;
(xiv) agreement, contract or commitment involving consideration in excess of $100,000 with respect to advertising, marketing or promotion (including slotting agreements) of the products of the Company and its Subsidiaries;
(iiixv) All employment warehouse agreement;
(xvi) license, royalty, indemnification or other agreement with respect to any material intangible property (including any Intellectual Property Rights);
(xvii) agent, sales representative, sales or distribution agreement;
(xviii) supply agreement and any agreement, contract or commitment or series of related agreements, consulting contracts or commitments with the same party or group of affiliated parties for the purchase of a minimum volume of products or services involving more than $500,000, and Schedule 2.13(a) shall specify the minimum amount to be purchased or rendered thereunder on an annual basis;
(xix) co-pack agreement;
(xx) power of attorney or other similar agreement or grant of agency;
(xxi) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world, including, without limitation, any nondisclosure or confidentiality agreements, any non-competition or similar agreements and executive compensation plans affecting any persons employed that restrict the geographic or retained by operational scope of the Company Company's or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting ' business or the freedom ability of the Company or any of its Subsidiaries to compete in enter into any new line of business business, any right of first offer or in first refusal with respect to the sale of any geographic location or to use or disclose asset, any information in its possession;
(v) Any license agreements involving the Company division or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement business of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any any contract or agreement under which any Person has any direct or indirect pecuniary interest in prohibiting the Company or any of its Subsidiaries from granting any rights or conducting any business; or
(xxii) other agreement which is material assetsto its operations and business prospects or involves a consideration in excess of $1,000,000 annually, whether or not in the ordinary course of business.
(b) The contracts All of the contracts, agreements and instruments set forth or required to be listed or described set forth on Schedule 4.15(a2.13
(a) attached hereto (the "Material Contracts") are valid, binding and enforceable in all material respects in accordance with their respective terms. Subject to obtaining the consents listed on Schedule 2.4 attached hereto, each of the Material Contracts shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby. The Company Disclosure Schedule are referred is neither in default under, nor in breach of, nor in receipt of any claim of default or 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 default, breach or event of noncompliance by the Company under any Material Contract; and neither the Company nor Pro-Fac has any Knowledge of any existing or threatened breach or cancellation or anticipated breach or cancellation by the other party or parties to in this Agreement as any Material Contract to which the “ContractsCompany is a party.” Seller
(c) The Company has delivered or made available to Acquirer Buyer a true, complete and correct and complete copy of all each written Contracts (and where oralMaterial Contract, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not havewaivers or other changes thereto (all of which amendments, individually waivers or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, changes thereto have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contractsmade available to Buyer), and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening has provided to Buyer a written description of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractsoral material contract.
Appears in 2 contracts
Sources: Unit Purchase Agreement (Pro Fac Cooperative Inc), Unit Purchase Agreement (Agrilink Foods Inc)
Contracts and Commitments. (a) Schedule 4.15 of 3.7 hereto lists the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
(i) All material contracts, commitments, following agreements, leaseswhether oral or written, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries FGH is a party, or by which are currently in effect, and which relate to the Company or any operation of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was FGH’s business: (i) entered into outside the ordinary course of business consistent collective bargaining agreement or contract with past practice, or any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal; (iv) stock purchase, restricted stock or stock option plan or other equity compensation plan; (v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person; (vi) contract, agreement or understanding relating to the voting of FGH Common Stock or the election of directors of FGH, other than the Voting Agreement; (vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of FGH; (viii) guaranty of any obligation for borrowed money or otherwise; (ix) lease or agreement under which FGH is lessee of, or holds or operates any property, real or personal, owned by any other party, for which the annual rental exceeds $50,000; (x) lease or agreement under which FGH 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; (xi) contract which prohibits FGH from freely engaging in business anywhere in the world; (xii) contract or commitment for capital expenditures in excess of $50,000; (xiii) agreement for the sale of any capital asset; or (xiv) other agreement which is either material to FGH’s business or was not entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsbusiness.
(b) The contracts To FGH’s Knowledge, FGH has performed all obligations required to be listed performed by it in connection with the contracts, understandings, arrangements or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts commitments required to be paid by Seller, the Company or disclosed in Schedule 3.7 hereto and is not in receipt of any claim of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any contract, understanding, arrangement or commitment required to be disclosed under such caption; FGH has no present expectation or intention of the Contractsnot fully performing any material obligation pursuant to any contract, understanding, arrangement or commitment required to be disclosed under such caption; and FGH has no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening Knowledge of any further condition could become a default breach or anticipated breach by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party to any contract, understanding, arrangement or commitment required to be disclosed under any of the Contractssuch caption.
Appears in 2 contracts
Sources: Merger Agreement (Financial Gravity Companies, Inc.), Merger Agreement (PACIFIC OIL Co)
Contracts and Commitments. Except as contemplated by ------------ ------------------------- this Agreement or as set forth on the attached Schedule 5.14, neither CII nor ------------- any Subsidiary is a party to or bound by any written or oral:
(a) Schedule 4.15 of the Company Disclosure Schedule contains a list (and. where oralpension, a summary description) of: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 or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ib) All material contractscontract for the employment of any officer, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking individual employee or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is Person on a full-time, part-time, consulting or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts other basis providing annual compensation in excess of Fifty Thousand Dollars ($50,000)100,000 or contract relating to loans to officers, directors or affiliates;
(iic) Any Real Property Lease entered into by the Company contract under which CII or any Subsidiary has advanced or loaned any other Person amounts in the aggregate exceeding $50,000;
(d) 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 CII and its Subsidiaries;
(iiie) All employment agreements, consulting agreements and executive compensation plans affecting guarantee of any persons employed obligation (other than by CII of a Subsidiary's debts or retained a guarantee by the Company a Subsidiary of CII's debts or any of its Subsidiariesanother Subsidiary's debts);
(ivf) Any lease or agreement containing covenants limiting the freedom of the Company under which CII or any Subsidiary is lessee of its Subsidiaries to compete in or holds or operates any line property, real or personal, owned by any other party, except for any lease of business real or in any geographic location or to use or disclose any information in its possessionpersonal property under which the aggregate annual rental payments do not exceed $50,000;
(vg) Any license agreements involving the Company lease or agreement under which CII or any Subsidiary is lessor of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programspermits any third party to hold or operate any property, real or personal, owned or controlled by CII or any Subsidiary;
(vih) Any agreement involving contract or group of related contracts, excluding all purchase orders, with the Company same party or any group of its Subsidiaries for affiliated parties the development performance of Software, including any components which involves consideration in excess of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries$50,000;
(viiii) Any agreement of assignment, license, indemnification or guaranty involving the Company or agreement with respect to any of its Subsidiariesintangible property (including, without limitation, any material intellectual property), excluding purchase orders;
(ixj) Any warranty agreement with respect to its services rendered or its products sold or leased;
(k) sales, distribution or franchise agreement;
(l) contract, agreement or other arrangement with any officer, director, stockholder, employee or affiliate, or any affiliate of any officer, director, stockholder or employee;
(m) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world;
(n) agreement with a term of more than six months which is not terminable by CII or any Subsidiary upon less than 30 days notice without penalty; or
(o) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $50,000 annually. All of the Company’s or its Subsidiaries’ current or former officerscontracts, directors or employees providing for agreements and instruments set forth on the payment of any severance pay or payment upon the occurrence of a “change Schedule 5.14 are valid, binding and enforceable in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest accordance with their ------------- respective terms in the Company or any of its all material assets.
(b) The contracts respects. CII and each Subsidiary have materially performed all obligations required to be listed performed by them and are not in material default under or described on Schedule 4.15(a) in material breach of nor in receipt of any claim of material default or breach under any contract, agreement or instrument to which CII or any Subsidiary is subject; 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 by CII or any Subsidiary under any contract, agreement or instrument to which CII or any Subsidiary is subject; neither CII nor any Subsidiary has Knowledge of any breach or anticipated breach by the other parties to any contract, agreement, instrument or commitment to which it is a party; and neither CII nor any Subsidiary is a party to any materially adverse contract or commitment. The New Investors have been given access to a true and correct copy of each of the Company Disclosure Schedule written instruments, plans, contracts and agreements and an accurate description of each of the oral arrangements, contracts and agreements which are referred to in this Agreement as on the “Contracts.” Seller has delivered or made available to Acquirer a trueSchedule 5.14, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually waivers or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contracts------------- changes thereto.
Appears in 2 contracts
Sources: Recapitalization Agreement (Kilovac International Inc), Recapitalization Agreement (Kilovac International Inc)
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 3.14(a) of the Company Disclosure Schedule, none of the Company, the Company Subsidiaries nor any of the entities listed on Schedule 3.1(b) of the Company Disclosure Schedule contains is a list (and. where oral, a summary description) ofparty to or bound by any of the following:
(i) All any Contract that provides for post-employment or post-consulting liabilities or obligations, including severance pay;
(ii) any Contract under which payments or obligations 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, including the Merger, 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, including the Merger, whether pursuant to a change in control or otherwise;
(iii) any Contract currently in force relating to the disposition or acquisition of assets where the fair market value of such assets exceeds $100,000, in each case other than inventory sold in the ordinary course of business;
(iv) any Contract relating to an ownership interest in any corporation, partnership, joint venture or other business enterprise or Person, excluding wholly-owned Company Subsidiaries;
(v) any Contract for the purchase of materials, supplies, equipment or services, 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, $100,000;
(vi) any Contract relating to the guarantee (whether absolute or contingent) by the Company or any of the Company Subsidiaries of (A) the performance of any other Person (other than the Company or a wholly-owned Company Subsidiary) or (B) the whole or any part of the indebtedness or liabilities of any other Person (other than the Company or a wholly-owned Company Subsidiary);
(vii) any Contract relating to the indemnification by the Company of its officers, directors, managers or agents;
(viii) any material contractsContract of indemnification or guaranty;
(ix) any power of attorney authorizing the incurrence of an obligation on the part of the Company or the Company Subsidiaries;
(x) any Contract which limits or restricts (A) where the Company or any of the Company Subsidiaries may conduct business, commitments, agreements, leases, licenses, undertakings and other arrangements to (B) the type or lines of business (current or future) in which the Company or any of its the Company Subsidiaries is a party, may engage or (C) any acquisition of assets or stock (tangible or intangible) by which the Company or any of its the Company Subsidiaries;
(xi) any Contract under which the aggregate payments or receipts for the past twelve (12) months exceeded, their respective businesses or assetsfor the following twelve (12) months is expected to exceed, $100,000;
(xii) any Contract for the borrowing or lending of money, or the Shares, are bound availability of credit (except credit extended by the Company or affected or which affect the consummation any of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into Company Subsidiaries to customers in the ordinary course of business and consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000practice);
(iixiii) Any Real Property Lease entered into by any Contract relating to any hedging, option (other than options granted to service providers in connection with the Company performance of services), derivative or other similar transaction and any foreign exchange position or contract for the exchange of its Subsidiariescurrency;
(iiixiv) All employment any collective bargaining agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(ivxv) Any agreement containing covenants limiting any Contract relating to the freedom employment of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (individuals who serve as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any officers of the Company’s or its Subsidiaries’ current or former officers; or
(xvi) any Contract that would otherwise be required to be filed as an exhibit to a periodic report under the Exchange Act, directors or employees providing for as provided by Item 601 of Regulation S-K promulgated under the payment Exchange Act. Each Contract of any severance pay or payment upon the occurrence type described in this Section 3.14(a) and in existence as of the date hereof is referred to herein as a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsContract”.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct An accurate and complete copy of each Company Contract (including all written Contracts amendments thereto) has been made available to Parent.
(and where oralc) Neither the Company nor any of the Company Subsidiaries, a written summary description nor, to the knowledge of such oral Contracts) together with all amendmentsthe Company, modifications and assignments thereof. Except as would not have, individually or in the aggregate, any other party to a Company Material Adverse EffectContract, is in material breach, violation or default under, or has received written notice that it has breached, violated or defaulted under (i) each nor, to the knowledge of the Contracts Company, does there exist any condition under which, with the passage of time or the giving of notice or both, would reasonably be expected to cause such a breach, violation or default under), any Company Contract material to the Company’s operation of its business.
(d) Each Company Contract is a valid, binding and enforceable obligation of the Company and any applicable Company Subsidiary and, to the knowledge of the Company, of the other party or parties thereto, in accordance with its terms and is in full force and effect and all payments and effect, in each case except to the extent enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller laws affecting creditors’ rights generally or by the Company to any other party under any general equitable principles or by principles of the Contractsgood faith and fair dealing (regardless of whether enforcement is sought in equity or at law).
Appears in 2 contracts
Sources: Merger Agreement (Synageva Biopharma Corp.), Merger Agreement (Trimeris Inc)
Contracts and Commitments. (a) Schedule 4.15 of the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not haveset forth on the attached Contracts Schedule, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is party to any:
(i) collective bargaining agreement or other Contract with any labor union, other than as set forth on the Employment and Labor Matters Schedule;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth on the Employee Benefits Schedule;
(iii) stock purchase, stock option or similar plan;
(iv) employment or consulting Contract providing for compensation in default excess of its obligations under $100,000 per annum, or any severance Contract;
(v) Contract relating to the borrowing by or lending from the Company or any Subsidiary from or to any third party or to the mortgaging of, pledging of or otherwise placing a Lien on any portion of the Contracts, and no event, occurrence, condition Company’s or act which, with any Subsidiary’s assets;
(vi) Contract providing for the giving of notice, the lapse of time or the happening of any further condition could become a default guaranty by the Company or any Subsidiary of any liability of any Person (other than the Company or any Subsidiary);
(vii) Contract obligating the Company or any Subsidiary, or providing the Company or any Subsidiary with the option or right, to purchase or otherwise acquire any equity interest in or assets of any other Person;
(viii) Contract pursuant to which either (i) the Company or any Subsidiary is obligated to indemnify or hold harmless any Person (other than the Company or any Subsidiary), or (ii) any Person (other than the Company or any Subsidiary) is obligated to indemnify or hold harmless the Company or any Subsidiary, in each case, other than in accordance with the terms of any standard warranty and/or terms and conditions of the Company or any of its Subsidiaries or of any other Person;
(ix) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $100,000;
(x) lease or agreement 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 $100,000;
(xi) Contract or group of related Contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and services has a selling price in excess of $250,000 (other than purchase orders entered into in the ordinary course of business);
(xii) Contract or group of related Contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $250,000 (other than purchase orders entered into in the ordinary course of business);
(xiii) Contract pursuant to which (A) the Company or any Subsidiary grants to any Person the option, license or other right to use any Intellectual Property rights owned by the Company or any of its Subsidiaries, other than non-exclusive licenses granted in the ordinary course with the sale, distribution or marketing of the Company’s or its Subsidiaries’ products, or (B) the Company or any Subsidiary obtains a license, option or other right from any Person to use any Intellectual Property (other than off-the-shelf software with a replacement cost and/or annual license fee of less than $100,000);
(xiv) Contract containing covenants that in any way purport to restrict the business activity of the Company or any of its Subsidiaries in any material respect or limit the freedom of any of them to engage in any line of business or to compete with any Person;
(xv) partnership agreement or joint venture agreement between the Company or any of its Subsidiaries and any other Person;
(xvi) other Contract that involves the expenditure, payment or receipt by the Company and its Subsidiaries of more than $250,000 (other than purchase orders received in the ordinary course of business); or
(xvii) amendment or supplement to or other modification of, or commitment to enter into, any of the foregoing.
(b) Seller has delivered or made available to Buyer a true and correct copy of all written Contracts which are referred to on the Contracts Schedule, together with all amendments, waivers or other changes thereto.
(c) Each contract on the Contracts Schedule (each, a “Material Contract” and, collectively, the “Material Contracts”) is a valid and binding agreement of the Company or its Subsidiary, as the case may be, enforceable in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors’ rights and subject to general principles of equity).
(i) Neither the Company nor any Subsidiary is in material default under any Material Contract, (ii) to the Company’s Knowledge, none of the other parties to any of the Material Contracts is in material default thereunder, (iii) to the Company’s Knowledge, no event has occurred that with notice or lapse of time would constitute a material breach or default under, or permit termination, modification or acceleration of, any Material Contract, and (iiiiv) since the Financial Date, no waiver has been granted by Seller or by neither the Company to nor any Subsidiary has received written notice of any default under any Material Contract that any other party under to any of the ContractsMaterial Contract intends to cancel, terminate or fail to renew such Contract.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Compass Diversified Holdings)
Contracts and Commitments. (a) Schedule 4.15 Section 3.14 of the Company Parent Disclosure Schedule contains a complete and accurate list (and. where oral, a summary description) of:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements of all Contracts of the following categories to which the Company Parent or any of its Subsidiaries is a party, party or by which any of them is bound as of the Company date of this Agreement:
(a) employment contracts, including, without limitation, contracts to employ executive officers and other contracts with officers, directors or shareholders of Parent, and any other Contracts with or for the benefits of Parent or its affiliates, and all severance, change in control or similar arrangements with any officers, employees or agents of Parent that will result in any obligation (absolute or contingent) of Parent or any of its SubsidiariesSubsidiaries to make any payment to any officers, their respective businesses employees or assets, or the Shares, are bound or affected or which affect agents of Parent following either the consummation of the transactions contemplated hereby. Any contract, commitmenttermination of employment, agreementor both;
(b) Labor contracts;
(c) material distribution, leasefranchise, license, undertaking sales, agency or advertising contracts;
(d) Contracts for the purchase of inventory which are not cancelable (without material penalty, cost or other arrangement shall be considered “material” liability) within one (1) year (other than Contracts for purposes the purchase of this Section 4.15(a)(iholiday goods in accordance with customary industry practices) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into and other Contracts made in the ordinary course of business consistent with past practice and involves payments involving annual expenditures or receipts liabilities in excess of Fifty Thousand Dollars $400,000 which are not cancelable ($50,000)without material penalty, cost or other liability) within ninety (90) days;
(iie) Any Real Property Lease entered into by promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for the Company lending of money, whether as borrower, lender or any guarantor, in excess of its Subsidiaries$250,000;
(iiif) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
Contracts (ivother than Leases) Any agreement containing covenants limiting the freedom of the Company Parent or any of its Subsidiaries to compete engage in any line of business or in compete with any geographic location Person or to use or disclose operate at any information in its possessionlocation;
(vg) Any license joint venture or partnership agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement similar agreements pursuant to which any third party is entitled to develop any Property and/or Facility on behalf of Parent or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viiih) Any agreement of indemnification any Contract where the customer under such Contract is a federal, state or guaranty involving the Company or any of its Subsidiarieslocal government;
(ixi) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees Contract providing for the payment acquisition, directly or indirectly (by merger or otherwise) of any severance pay material assets (other than inventory) or payment upon the occurrence capital stock of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntaryanother Person; and
(xj) Any agreement under Contracts involving annual expenditures or liabilities in excess of $400,000, which any Person has any direct are not cancelable (without material penalty, cost or indirect pecuniary interest in the Company or any of its material assets.
other liability) within ninety (b90) The contracts required to be listed or described on Schedule 4.15(a) days. True copies of the Company written Contracts identified in Section 3.14 of the Parent Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has have been delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the ContractsCompany.
Appears in 2 contracts
Sources: Merger Agreement (Fred Meyer Inc), Merger Agreement (Quality Food Centers Inc)
Contracts and Commitments. (a) Except as set forth in Schedule 4.15 of the Company Disclosure Schedule contains a list (and. where oral3.17(a) hereto, a summary description) ofTreyarch does not have, nor is Treyarch party to or bound by:
(i) All material contractsany consulting or sales agreement, commitmentscontract or commitment under which any firm or other organization provides services to Treyarch;
(ii) any fidelity or surety bond or completion bond;
(iii) any agreement of indemnification or guaranty;
(iv) any agreement, agreements, leases, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, transaction or series of transactions for any purpose other than in the ordinary course of Treyarch's business relating to capital expenditures or commitments or long-term obligations in excess of $10,000, other than the restricted interest bearing account in the amount of approximately $170,000, which Treyarch has pledged as security for its obligations under its facility lease;
(v) any agreement, lease, license, undertaking contract or other arrangement shall be considered “material” for purposes commitment relating to the disposition or acquisition of this Section 4.15(a)(i) if it is assets or was (i) entered into any interest in any business enterprise outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programsTreyarch's business;
(vi) Any agreement involving any mortgages, indentures, loans or credit agreements, security agreements or other arrangements or instruments relating to the Company borrowing of money or any extension of its Subsidiaries for the development of Softwarecredit, including any components of Company Softwareguaranties referred to in clause (iii) hereof;
(vii) Any joint venture, joint development any purchase order or partnership agreement contract for the purchase of inventory or similar agreement other materials involving $10,000 or arrangement involving the Company or any of its Subsidiariesmore;
(viii) Any agreement of indemnification any distribution, joint marketing or guaranty involving the Company or any of its Subsidiariesdevelopment agreement;
(ix) Any any assignment, license or other agreement with respect to any form of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntaryintangible property; andor
(x) Any agreement under which any Person has any direct other agreement, contract or indirect pecuniary interest commitment that involves $10,000 or more or is not cancelable without penalty in the Company or excess of $10,000 within thirty (30) days (collectively, any of its material assets(i) through (x) above shall be known as "Contracts").
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, aggregate have a Company Material Adverse Effect, (i) each of the all such Contracts is are valid and binding on Treyarch and are in full force and effect and all payments enforceable against Treyarch in accordance with their respective terms. Except as disclosed in Schedule 3.17(b) hereto, no approval or consent of, or notice to any Person the failure of which to obtain would have individually or in the aggregate a Material Adverse Effect is needed in order that such Contracts shall continue in full force and other amounts required effect in accordance with its terms without penalty, acceleration or rights of early termination following the consummation of the Merger. Except to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under extent any of the Contractsfollowing would not individually or in the aggregate have a Material Adverse Effect, and no eventTreyarch is not in violation of, occurrence, condition breach of or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of such Contract nor, to the ContractsMembers' knowledge, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to is any other party to any such Contract. Except as set forth in Schedule 3.17(b) hereto, Treyarch is not in violation or breach of or default under any such Contract (including leases of the Contractsreal property) relating to non-competition, indebtedness, guarantees of indebtedness of any other person, employment, or collective bargaining.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Activision Inc /Ny)
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 3.08(a), as of the Company Disclosure Effective Date, the Assumed Contracts and the DCS Contracts do not include any written or oral (each Contract set forth on Schedule contains 3.08(a) is referred to herein as a list (and. where oral, a summary description) of:“Material Contract”):
(i) All material contracts, commitments, agreements, leases, licenses, undertakings Contract by and other arrangements to which the Company or between Seller and any Affiliate of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or Seller;
(ii) Contract (a) for the employment of any Person on a full-time or part-time basis providing for compensation, including bonus compensation, in excess of $100,000 per annum; (b) relating to any independent contractor or other service provider that provides for compensation in excess of $100,000 per annum or (c) a contract related to the employment of any person that requires the Buyer to make any severance payment, retention payment or bonus or other payment contingent on the occurrence of a transaction;
(iii) Contract or indenture relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any of the Purchased Assets;
(iv) guaranty of any obligation, Indebtedness or Liability of another person;
(v) lease or agreement under which Seller is lessee of, or holds or operates any Tangible Personal Property, for which the annual rental exceeds $100,000;
(vi) lease or agreement under which Seller is lessor of or permits any third party to hold or operate any property (other than Real Property) for which the annual rental exceeds $100,000;
(vii) coal sale agreement, or purchase order or commitment to sell or offer to sell coal;
(viii) contract or group of related contracts with the same party for the sale or purchase of products (other than coal) or services, under which the undelivered balance of the products and services has a selling price in excess of $500,000 (other than purchase orders entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000which can be cancelled immediately without penalty to Buyer);
(iiix) Any Real Property Lease entered into by Contract prohibiting or restricting the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom ability of the Company or any of Business to conduct its Subsidiaries respective business, to compete in any line of business or to engage in any geographic location business or operate in any geographical area;
(x) Contract that will require Buyer (after Closing) to purchase its total requirements of any product or service from a third party or that contains “take or pay” provisions;
(xi) Contract related to the use of any Intellectual Property for or in the Business which requires annual payments in excess of $100,000 and all Contracts permitting other Persons to use or disclose register any information Intellectual Property that is included in its possessionthe Purchased Assets or for which a transfer fee of more than $25,000 will be incurred;
(vxii) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any Contract with respect to a joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiariesrelationship;
(viiixiii) Any agreement of indemnification Contract that involves any exchange traded, over-the-counter or guaranty involving the Company other swap, cap, floor, collar, futures contract, forward contract, option or any other derivative financial instrument or contract, based on any commodity, security, instrument, asset, rate or index of its Subsidiariesany kind or nature whatsoever, whether tangible or intangible, including commodities, emissions allowances, renewable energy credits, currencies, interest rates, foreign currency and other indices, in each case other than agreements for the purchase and sale of coal;
(ixxiv) Any agreement with Contract for acquisitions of membership interests, capital stock, any equity interest or assets of another Person (whether by merger, membership transfer, or stock or asset purchase) or for any options to acquire the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andsame;
(xxv) Any agreement under which Contract for transportation services;
(xvi) Contract to pay an “overriding royalty”;
(xvii) Contract for contract mining; or
(xviii) Contract to process, store, load, transport or otherwise handle coal produced by any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsother Person.
(b) The contracts required Buyer has been given access to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, true and correct and complete copy of all written Assumed Contracts (and where oralDCS Contracts, a written summary description of such oral Contracts) together with including all amendments, modifications and assignments thereof. Except as would not have, individually waivers or in the aggregate, a Company Material Adverse Effectother changes thereto.
(c) With respect to each Assumed Contract, (i) each of the Contracts such Assumed Contract is in full force and effect and all payments is a valid and other amounts required binding obligation of Seller and to be paid by Seller’s Knowledge, the Company other party or any of its Subsidiariesparties to such Contract and enforceable against Seller and to Seller’s Knowledge, which have become due, have been paid, the other parties to such Contract and (ii) neither Seller is not in material default under such Assumed Contract, and to Seller’s Knowledge, the Company nor any of its Subsidiaries other parties to the Assumed Contracts are not in material default thereunder. With respect to each DCS Contract, (i) such DCS Contract is in default full force and effect and is a valid and binding obligation of its obligations under any of the ContractsDCS and is enforceable against DCS, and, to Seller’s Knowledge, such DCS Contract is a valid and binding obligation of, and no event, occurrence, condition or act which, with the giving of noticeis enforceable against, the lapse of time other party or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contractsparties to such DCS Contract, and (iiiii) since DCS is not in material default under such DCS Contract, and to Seller’s Knowledge, the Financial Date, no waiver has been granted by Seller or by other parties to the Company to any other party under any of the ContractsDCS Contracts are not in material default thereunder.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Peabody Energy Corp)
Contracts and Commitments. (a) Schedule 4.15 Except as set forth on the Contracts Schedule, neither the Company nor any of its Subsidiaries is a party to any: (i) collective bargaining agreement or other contract with any labor union, works council, or other labor organization; (ii) bonus or annual incentive compensation, change-in-control, retention, severance, termination, pension, profit sharing, retirement or other form of deferred compensation plan, stock purchase, stock option, equity or equity based plan or similar plan other than as set forth in Section 6.16 or the Disclosure Schedules relating thereto; (iii) contract for the employment or engagement of any officer, individual employee or other person on a full-time, part-time, or consulting basis providing for base compensation in excess of one hundred and fifty thousand dollars ($150,000) per annum or providing for severance or termination entitlements; (iv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company Disclosure Schedule contains or any of its Subsidiaries; (v) contract or group of related contracts involving the creation, incurrence, assumption or guaranty of any obligation for borrowed money or other guaranty under which it has imposed a list Lien (and. where oralother than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (vi) lease or agreement under which it is lessee of, a summary descriptionor holds or operates any personal property owned by any other party, for which the annual rental exceeds two hundred fifty thousand dollars ($250,000); (vii) of:
lease or agreement 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 two hundred fifty thousand dollars (i$250,000); (viii) All material contractsother than purchase orders entered into in the ordinary course of business, commitmentscontract or group of related contracts with any supplier required to be listed on the Customers and Suppliers Schedule; (ix) other than purchase orders entered into in the ordinary course of business, agreements, leases, licenses, undertakings contract or group of related contracts with any customer required to be listed on the Customers and other arrangements to Suppliers Schedule; (x) contract which prohibits the Company or any of its Subsidiaries is from freely engaging in business anywhere in the world; (xi) contracts relating to the licensing of Intellectual Property by the Company or any of its Subsidiaries to a party, third-party or by which a third-party to the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts each case involving consideration in excess of Fifty Thousand Dollars two hundred fifty thousand dollars ($50,000);
250,000) per annum; (iixii) Any Real Property Lease all other agreements affecting the Company’s or any of its Subsidiaries’ ability to use or disclose any material Intellectual Property, 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;
Subsidiaries with customers in the ordinary course of business; (iiixiii) All employment agreementscontracts relating to the acquisition or disposition (whether by merger, consulting agreements and executive compensation plans affecting sale of stock, sale of assets or otherwise) of any persons employed Person or retained material line of business entered into since September 30, 2013, or the future acquisition or disposition (whether by the Company merger, sale of stock, sale of assets or otherwise) of any Person or material line of business; (xiv) contract concerning a partnership or a joint venture; (xv) contract under which it has advanced or loaned any amount to any of its Subsidiaries;
directors, officers, and employees outside the ordinary course of business; (ivxvi) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any Governmental Body that provides for or involves injunctive relief; (xvii) contract containing a provision naming a counter party as the exclusive supplier or distributor of the Company’s products or its Subsidiaries’ current services; and (xviii) agent, broker, sales representative, sales or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsdistribution agreement.
(b) The Each of the contracts listed or required to be listed or described on the Contracts Schedule 4.15(a) is in full force and effect, and is the legal, valid and binding obligation of the Company Disclosure or the Subsidiary of the Company which is party thereto, and, to the knowledge of the Sellers, of the other parties thereto enforceable against each of them in accordance with its terms. Except as set forth on the Contracts Schedule, neither the Company nor any Subsidiary of the Company (as applicable) is in default under any contract listed on the Contracts Schedule, and, to the knowledge of the Sellers, the other party to each of the contracts listed on the Contracts Schedule are referred is not in default thereunder. Except as set forth on the Contracts Schedule, no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or default on the part of the Company, or any Subsidiary of the Company or, to in this Agreement as the “Contracts.” Seller knowledge of the Sellers, any other party under any contract listed on the Contracts Schedule. To the knowledge of the Sellers, (i) no party to any contract listed on the Contracts Schedule has delivered or exercised any termination rights with respect thereto, and (ii) no party has given written notice of any material dispute with respect to any contract listed on the Contracts Schedule. The Company has made available to Acquirer a truethe Purchaser true and correct copies of each contract listed on the Contracts Schedule, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractssupplements thereto.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Huntsman International LLC)
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 of 3.09, neither the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or nor any of its Subsidiaries is party to any (each, a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was Material Contract”):
(i) entered into outside the ordinary course collective bargaining agreement or any other agreement with any labor union, works council or staff association holding representational rights with respect to employees of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(ii) bonus, pension, profit sharing, change of control, retention, severance, retirement or other form of deferred compensation plan, other than as described in Section 3.13 of the Disclosure Schedules;
(iii) All equity purchase, option or similar plan, and contracts that contain restrictions with respect to the payment of dividends or any other distribution in respect of capital stock or other equity interests;
(iv) 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 $200,000 per annum;
(v) agreement or indenture relating to any Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any material portion of their assets;
(vi) guaranty of any obligation for Indebtedness or other material guaranty;
(vii) lease or agreement 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;
(viii) lease or agreement under which it is lessor of, or permits any third party to hold or operate any personal property owned by the Company or any of its Subsidiaries, for which the annual rental exceeds $50,000;
(ix) agreements relating to any completed or pending material business acquisition or divestiture by the Company or any of its Subsidiaries within the last three (3) years or any such contracts entered into at any time pursuant to which there exists any future obligation to make any payments to any third party upon the occurrence of certain events (including earn outs but excluding indemnification obligations pursuant to which there are no pending claims);
(x) license agreement relating to the use in the Business of any third party Intellectual Property (excluding license agreements for commercial or “off-the-shelf” software or services) and any agreement relating to the use or registration by a third party of Intellectual Property of the Company or any of its Subsidiaries (excluding non-disclosure agreements and license agreements of such Intellectual Property granted to customers, in each case, entered into in the ordinary course of business);
(xi) contract which materially prohibits the Company or any of its Subsidiaries from competing with any Person or freely engaging in business anywhere in the world;
(xii) contracts or agreements granting most favored nation pricing or exclusive rights to a counterparty or requiring it to purchase all or substantially all of its requirements for a product or service or a minimum quantity of a product or service from a particular Person;
(xiii) joint venture, partnership or limited partnership agreements, consulting including any agreement or commitment to make any loan or capital contribution to any joint venture or partnership;
(xiv) contracts or agreements and executive compensation plans affecting which grant any persons employed right of first refusal or retained by first offer or similar right or otherwise relating to the acquisition or disposition of any material assets or business of the Company or any of its Subsidiaries;
(ivxv) Any settlement, conciliation or similar agreement containing covenants limiting with any Governmental Authority or any other Person;
(xvi) contracts or agreements loaning equipment to customers or granting aggregate offering discounts to customers; or
(xvii) other agreements that require the freedom of payment by, or to, the Company or any of its Subsidiaries to compete after the date hereof of an amount in any line excess of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets$100,000 per annum.
(b) The contracts required to be listed Purchaser either has been supplied with, or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer been given access to, a true, true and correct and complete copy of all written Contracts (and where oralcontracts which are referred to on Schedule 3.09, a written summary description of such oral Contracts) together with all amendments, modifications waivers or other changes thereto, and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each true and correct written description of the Contracts material terms of any oral contracts which are referred to on Schedule 3.09.
(c) Neither the Company nor any of its Subsidiaries, or to the Company’s knowledge any other party thereto, is in material default, breach or violation under any contract listed on the Schedule 3.09. All contracts set forth on Schedule 3.09 are valid and in full force and effect and all payments constitute legal, valid and other amounts required to be paid by Seller, binding obligations of the Company or such Subsidiary, and to the Company’s knowledge any other party thereto, and are enforceable against the Company or such Subsidiary, and to the Company’s knowledge any other party 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 its Subsidiaries, which have become due, have been paid, (ii) neither equity affecting the availability of specific performance and other equitable remedies. Neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening has received written notice of any further condition could become a default by breach, violation or default, or any notice of any intent to terminate, not to renew or to challenge the Company validity or its Subsidiaries under enforceability of, any of contract listed on the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the ContractsSchedule 3.09.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Halyard Health, Inc.)
Contracts and Commitments. (a) Except (1) for Company Franchise Agreements and (2) as set forth on Schedule 4.15 3.09 of the Company Disclosure Schedule contains Schedules, none of the Acquired Companies is a list (and. where oral, a summary description) ofparty to or bound by any executory:
(i) All material contractsbonus, commitmentspension, agreementsprofit sharing, leasesretirement or other form of deferred compensation plan or Contract;
(ii) Contract or indenture relating to Indebtedness or to mortgaging, licensespledging or otherwise placing a Lien (other than Permitted Liens) on any portion of the assets of the Acquired Companies;
(iii) guaranty of any obligation for Indebtedness or other guaranty involving more than $100,000;
(iv) lease or Contract under which it is lessee of, undertakings and or holds or operates any personal property owned by any other arrangements to party, for which the Company annual rental exceeds $100,000;
(v) lease or Contract under which it is lessor of or permits any third party to hold or operate any of its Subsidiaries is personal property, for which the annual rental exceeds $100,000;
(vi) other than in respect of blanket purchase orders that do not obligate the Company to purchase a partyminimum amount, Contract or group of related Contracts with the same party for the purchase by any Acquired Company of products or services which provided for annual payments in excess of $100,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet;
(vii) Contract relating to any future disposition or acquisition of material stock, assets or properties by any Acquired Company, or by which the any merger or business combination with respect to or involving any Acquired Company (other than this Agreement);
(viii) Contract requiring any Acquired Company to purchase its total requirements of any product or any of its Subsidiariesservices from a third party or that contain “take or pay” provisions;
(ix) broker, their respective businesses distributor, dealer, manufacturer’s representative, agency, sales promotion, market research, marketing consulting or assets, advertising Contract involving more than $100,000 annually;
(x) material license or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was Contract relating to (i) entered into outside the ordinary course use by any Acquired Company of business consistent with past practice, any third-party Intellectual Property or (ii) entered into the use of any Company Intellectual Property other than non-exclusive licenses granted to distributors in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000)business;
(iixi) Any Real Property Lease entered into by the Contract which limits or prohibits or purports to limit or prohibit any Acquired Company from competing or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete freely engaging in any line of business or with any Person or anywhere in the world or during any geographic location period of time or to use containing any exclusivity, most favored nations, non-solicitation or disclose any information in its possessionsimilar provisions;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licenseexii) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with respect to any of the Company’s Subsidiaries set forth on Schedule 3.04 of the Disclosure Schedules, Contract that provides for any joint venture, partnership or similar arrangement by any Acquired Company;
(xiii) Contract between or among any Acquired Company on the one hand and any Affiliate of any Acquired Company (other than the Company or its Subsidiaries’ current or former officers, directors or employees providing for ) on the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andother hand;
(xxiv) Any employment agreement under or contract with an independent contractor or consultant (or similar arrangement) to which an Acquired Company is a party and which is not cancellable without material penalty or without more than thirty (30) days’ notice;
(xv) collective bargaining agreement or Contract with any Person has union, works council or labor organization; or
(xvi) any direct or indirect pecuniary interest in other Contract, the Company or any absence of its material assetswhich would cause a Material Adverse Effect.
(b) The contracts required to be listed Company either has supplied Purchaser with, or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer given Purchaser access to, a true, true and correct and complete copy of all written Contracts listed on Schedule 3.09 of the Disclosure Schedules (and where oralthe “Material Contracts”), a written summary description of such oral Contracts) together with all material amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company supplements thereto.
(c) With respect to each Material Adverse Effect, Contract: (i) each such contract is a valid and binding agreement of an Acquired Company, as applicable, enforceable in accordance with its terms, except as the Contracts is in full force enforcement thereof may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and effect and all payments general principles of equity affecting the availability of specific performance and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, equitable remedies; (ii) neither none of the Company nor any of its Subsidiaries Acquired Companies, as applicable, is in default of its obligations under material breach or default, nor has any of the Contracts, and no event, occurrence, condition or act Acquired Company taken any action which, with the giving of notice, the notice or lapse of time or the happening of any further condition could become both, would constitute a default by the Company material breach or its Subsidiaries default, or permit termination, modification or acceleration, as applicable, under any of the Contracts, such contract; and (iii) since to the Financial DateCompany’s knowledge, no waiver has been granted by Seller or by the Company to any other party is in material breach or default under any of the Contractssuch contract.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (CNL Strategic Capital, LLC)
Contracts and Commitments. (a) Schedule 4.15 of 3.9 hereto lists the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
(i) All material contracts, commitments, following agreements, leaseswhether oral or written, licenses, undertakings and other arrangements to which the Company Parent or any of its Subsidiaries Merger Sub is a party, or by which are currently in effect, and which relate to the Company or any operation of its Subsidiaries, their respective businesses or assetsParent’s business, or where applicable, the Shares, are bound or affected or which affect the consummation business of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was Merger Sub: (i) entered into outside the ordinary course of business consistent collective bargaining agreement or contract with past practice, or any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal; (iv) stock purchase or stock option plan; (v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person; (vi) confidentiality agreement; (vii) contract, agreement or understanding relating to the voting of Parent Common Stock or the election of directors of Parent; (viii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of Parent or Merger Sub; (ix) guaranty of any obligation for borrowed money or otherwise; (x) lease or agreement under which Parent or Merger Sub is lessee of, or holds or operates any property, real or personal, owned by any other party, for which the annual rental exceeds $25,000; (xi) lease or agreement under which Parent or Merger Sub is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $25,000; (xii) contract which prohibits Parent or Merger Sub from freely engaging in business anywhere in the world; (xiii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by Parent or Merger Sub in connection with any intellectual property rights; (xiv) contract or commitment for capital expenditures in excess of $50,000; (xv) agreement for the sale of any capital asset; (xvi) contract with Merger Sub any affiliate thereof which in any way relates to Parent (other than for employment on customary terms); or (xvii) other agreement which is either material to Parent’s business or was not entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsbusiness.
(b) The contracts To Parent’s knowledge, Parent and Merger Sub has performed all obligations required to be listed performed by them in connection with the contracts or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts commitments required to be paid by Sellerdisclosed in Schedule 3.9 hereto and is not in receipt of any claim of default under any contract or commitment required to be disclosed under such caption, the Company or any of its SubsidiariesParent and Merger Sub, which have become duewhere applicable, have been paid, (ii) neither the Company nor no present expectation or intention of not fully performing any of its Subsidiaries is in default of its obligations material obligation pursuant to any contract or commitment required to be disclosed under any of the Contractssuch caption, and Parent has no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening knowledge of any further condition could become a default breach or anticipated breach by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party to any contract or commitment required to be disclosed under any of the Contractssuch caption.
Appears in 2 contracts
Sources: Merger Agreement (Laurier International Inc), Merger Agreement (Lexicon United Inc)
Contracts and Commitments. (a) Schedule 4.15 of Except as set forth on the Contracts Schedule, neither the Company Disclosure Schedule contains nor any of its Subsidiaries is a list (and. where oral, a summary description) ofparty to any:
(i) All material contractscollective bargaining or similar agreement;
(ii) bonus, commitmentspension, agreementsprofit sharing, leasesretirement or other form of deferred compensation plan, licensesother than as set forth in the Employee Benefits Schedule relating thereto;
(iii) contract or other arrangement with respect to the purchase or sale of any Equity Interest or providing for the acquisition of any business or significant assets of any other Person (whether by way of merger, undertakings combination, stock purchase, asset purchase or other similar transaction) under which there are any remaining obligations on the part of any party thereto;
(iv) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis providing for base compensation in excess of one hundred and seventy-five thousand dollars ($175,000) per annum;
(v) agreement or indenture relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other arrangements to which than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries is a party, Subsidiaries;
(vi) agreement that prohibits the payment of dividends or by which distributions in respect of any Equity Interest of the Company or any of its Subsidiaries, their respective businesses or assets, or prohibits the Shares, are bound or affected or which affect the consummation pledging of any Equity Interest of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking Company or other arrangement shall be considered “material” for purposes any of this Section 4.15(a)(i) if it is its Subsidiaries or was (i) entered into outside prohibits the ordinary course issuance of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into guarantees by the Company or any of its Subsidiaries;
(iiivii) All employment agreementscontract or agreement that includes a performance or other guarantee obligation (other than any product warranty issued in the ordinary course of business) (x) with respect to the purported benefits of the product or service that is the subject thereof to the customer and (y) that, consulting agreements if not satisfied, would result in a material price adjustment under the terms of such contract;
(viii) lease or agreement under which it is (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, in each case for which the annual rental exceeds seventy-five thousand dollars ($75,000);
(ix) other than purchase orders entered into in the ordinary course of business, contract or group of related contracts with any supplier required to be listed on the Customers and executive compensation plans affecting Suppliers Schedule;
(x) other than purchase orders entered into in the ordinary course of business, contract or group of related contracts with any persons employed customer required to be listed on the Customers and Suppliers Schedule;
(xi) other than contracts with customers and suppliers entered into in the ordinary course of business, contract or retained by group of related contracts involving payments (to or from the Company or and/or any of its Subsidiaries) of more than three hundred thousand dollars ($300,000) in any twelve (12)-month period;
(ivxii) Any agreement containing covenants limiting the freedom of the Company contract which prohibits or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving restricts the Company or any of its Subsidiaries (as licensor or, following the Closing, would prohibit or licenseerestrict the Purchaser, the Surviving Entity or any of their respective Affiliates) other than licenses for from freely engaging in business anywhere in the use world, including any contract that (A) materially restricts the Company or any of off-the-shelf software programs;
its Subsidiary from engaging in any material line of business, developing, marketing or distributing products or services or obligates the Company or any of its Subsidiary not to compete with another Person or in any geographic area or during any period of time or that would otherwise limit the freedom of Purchaser or its Affiliates (viincluding the Surviving Entity) Any agreement involving from engaging in any line of business after the Effective Time, (B) contains exclusivity obligations or restrictions binding on the Company or any of its Subsidiaries for or that would be binding on the development Purchaser or any of Software, its Affiliates (including any components of Company Software
the Surviving Entity) after the Effective Time or (viiC) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving prohibits the Company or any of its SubsidiariesSubsidiaries from hiring or soliciting for hire any employee or group of employees (other than, in the case of this clause (C), contracts entered into in the ordinary course of business);
(viiixiii) Any contract containing most favored nation pricing provisions or granting to any Person a right of first refusal, a right of first offer or an option to purchase, acquire, sell or dispose of any their respective assets (other than inventory in the ordinary course of business) valued at an amount in excess of fifty thousand dollars ($50,000);
(xiv) agreement that contains any material on-going indemnification rights or obligations, or credit support relating to such indemnification rights or obligations, other than any of such indemnification rights or guaranty involving obligations incurred in the ordinary course of business;
(xv) settlement agreement for an amount in excess of fifty thousand dollars ($50,000) entered into within the past three (3) years;
(xvi) agreement with any Governmental Body, including any agreement that is (A) a settlement or similar agreement with any Governmental Body, or (B) an Order or consent of a Governmental Body to which the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officersSubsidiaries is subject, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of involving material performance by the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andSubsidiaries after the date of this Agreement;
(xxvii) Any Intellectual Property Agreements, except as set forth on the Intellectual Property Schedule;
(xviii) other agreement under which affecting the Company’s or any Person has of its Subsidiaries’ ability to use or disclose any direct or indirect pecuniary interest material Intellectual Property, 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;
(xix) partnership, joint venture, limited liability company or other similar agreement or arrangement (including any agreement providing for joint research, development or marketing); and
(xx) contracts relating to the acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) of any Person or material assetsline of business entered into during the past three (3) years or the future acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) of any Person or material line of business.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a truethe Purchaser true and correct copies of each contract listed on the Contracts Schedule, correct the Intellectual Property Schedule and complete copy of all written Contracts (and where oralthe Employee Benefits Schedule, a written summary description of such oral Contracts) in each case together with all amendments, modifications and assignments thereofor supplements thereto. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Each of the contracts listed or required to be listed on the Contracts Schedule is in full force and effect effect, and all payments is the legal, valid and other amounts required to be paid by Seller, binding obligation of and enforceable against the Company or any Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of and against the other parties thereto in accordance with its Subsidiariesterms. Except as set forth on the Contracts Schedule, which have become due, have been paid, (ii) neither the Company nor any Subsidiary of its Subsidiaries the Company (as applicable) is in material default of its obligations under any contract listed on the Contracts Schedule, and, to the knowledge of the ContractsCompany, and the other party to each of the contracts listed on the Contracts Schedule is not in material default thereunder. Except as set forth on the Contracts Schedule, no event, occurrence, condition or act which, event has occurred that with the giving of notice, the lapse of time or the happening giving of notice or both would constitute a material breach or default on the part of the Company, or any further condition could become a default by Subsidiary of the Company or its Subsidiaries under any or, to the knowledge of the ContractsCompany, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any contract listed on the Contracts Schedule. The Company and its Subsidiaries have not, and to the knowledge of the ContractsCompany, no other party to any contract listed on the Contracts Schedule has (i) exercised any termination rights with respect to any contract listed on the Contracts Schedule or (ii) given written notice of any material dispute with respect to any contract listed on the Contracts Schedule.
Appears in 1 contract
Sources: Merger Agreement (Hubbell Inc)
Contracts and Commitments. (a) Schedule 4.15 Neither the Company nor any of the Company Disclosure Schedule contains Subsidiaries is party to any of the following (a list (and. where oral, a summary description) of:
“Contract”): (i) All agreement relating to any completed material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company business acquisition or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into divestiture by the Company or any of its Subsidiaries;
the Subsidiaries within the last three (3) years; (ii) collective bargaining agreement or contract with any labor union; (iii) All written or other material bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 5.12 or the Schedules relating thereto; (iv) stock purchase, stock option or similar plan; (v) contract for the employment agreementsof any officer, employee or other person on a consulting agreements basis with annual payments in excess of $100,000; (vi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any portion of the Company’s or any of the Subsidiaries’ assets, other than Permitted Liens; (vii) guaranty of any obligation for borrowed money or other guaranty; (viii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $250,000; (ix) lease or agreement 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 $100,000; (x) contract or group of related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and executive compensation plans affecting any persons employed services has a selling price in excess of $500,000; (xi) contract or retained by group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $500,000; (xii) contract which prohibits the Company or any of its Subsidiaries;
the Subsidiaries from freely engaging in business anywhere or from competing with any Person, (ivxiii) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s distributor, dealer or its Subsidiaries’ current sales representative; (xiv) joint venture agreement; (xv) agreement for any Indebtedness; (xvi) contract with any governmental authority; (xvii) material agreement, arrangement or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of program pursuant to which the Company has offered or made available to its customers (including its distributors) any volume discount, rebate or advertising or promotional credit or allowance which in total is greater than $100,000 per year per customer; or (xviii) power of its Subsidiariesattorney; (xix) management services agreement or (xx) any other agreement, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under the performance of which any Person has any direct or indirect pecuniary interest will involve consideration in the Company or any excess of its material assets$500,000.
(b) The contracts required to be listed Buyer either has been supplied with, or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer been given access to, a true, complete and correct and complete copy of all written Contracts (and where oralContracts, a written summary description of such oral Contracts) together with all material amendments, modifications and assignments thereof. Except as would not have, individually waivers or in the aggregate, a Company Material Adverse Effect, other changes thereto.
(ic) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither Neither the Company nor any of its the Subsidiaries nor, to the knowledge of the Company, any other party to the Contract, is in default of its obligations in any material respect under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the ContractsContract.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 3.09(a), as of the date hereof, neither the Company Disclosure Schedule contains a list (and. where oral, a summary description) ofnor any of its Subsidiaries is party to or bound by any written:
(i) All (A) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any material contractsportion of their assets, commitmentsor (B) Contract under which it has advanced or loaned any other Person that is not an Affiliate of the Company, agreementsamounts exceeding, leasesin the aggregate, licenses$25,000,000;
(ii) guaranty of any obligation made on behalf of any Person other than the Company or any of its Subsidiaries or other material guaranty in amounts exceeding, undertakings and other arrangements in the aggregate, $25,000,000;
(iii) settlement, conciliation, or similar agreement with any Governmental Entity or pursuant to which the Company or any of its Subsidiaries will be required, after the date of this Agreement, to satisfy any material monetary or non-monetary obligations;
(iv) lease or agreement under which it is a lessee or lessor of, or holds or operates any material personal property owned by any other party, or permits any third party to hold or operate any material personal property owned or controlled by it, in each case for which the annual rental exceeds $5,000,000;
(v) agreements relating to any pending or completed material business acquisition by the Company or any of its Subsidiaries within the last three (3) years or pursuant to which the Company or any of its Subsidiaries, their respective businesses Subsidiaries has remaining material obligations or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000)liabilities;
(iivi) Any Real Property Lease entered into by joint venture, partnership or similar agreement or other similar arrangement with a third party that is material to the business of the Company or any of and its Subsidiaries, taken as a whole;
(iiivii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
Contract pursuant to which (ivA) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business are licensed or in any geographic location or otherwise permitted by a third party to use or disclose any information in Intellectual Property material to the business of the Company and its possession;
Subsidiaries, taken as a whole, which is owned by such third party (v) Any license agreements involving other than non-exclusive licenses to the Company or any of its Subsidiaries of commercially available, unmodified “off the shelf” software where one-time or aggregate annual fees, royalties or other consideration (as licensor including maintenance fees) for any such software or licenseegroup of related software licenses is no more than $2,000,000), or (B) other than licenses for the any third party is licensed or otherwise permitted to use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving material Intellectual Property owned by the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification Contract which expressly limits or guaranty involving prohibits the Company or any of its SubsidiariesSubsidiaries from competing or freely engaging in business anywhere in the world;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of With respect to material Intellectual Property owned by the Company or any of its Subsidiaries, whether such payments are payable upon a termination any (A) Contract that is voluntary limits the freedom or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in right of the Company or any of its material assetsSubsidiaries to use such Intellectual Property, (B) Contract granting any exclusive rights to any third party with respect to such Intellectual Property, (C) settlement Contract, consent-to-use or co-existence agreement or (D) Contract providing for the assignment, ownership, creation or development of such Intellectual Property (excluding employee and independent contractor agreements on the standard form of the Company or any of its Subsidiaries which are entered into in the ordinary course of business);
(x) Contract with any Governmental Entity where (A) the Governmental Entity is the customer and (B) such Contract involves annual payments in excess of $5,000,000;
(xi) collective bargaining agreement, neutrality agreement, card check agreement, or any other Contract with any trade union, works council or other labor organization affecting any employee of the Company;
(xii) Contract with each (A) Company Significant Customer and (B) Company Significant Supplier;
(xiii) Contract for the provision of services to the Company or any of its Subsidiaries by any employee or individual independent contractor on a full-time, part-time or consulting basis and providing for annual compensation in excess of $500,000; or
(xiv) any other Contract which involves consideration in excess of $80,000,000.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, the Purchaser or its Representatives true and correct and complete copy copies (in all material respects) of all written Contracts and plans that are required to be set forth on Schedule 3.09(a) (and where oralcollectively, a written summary description of such oral the “Company Material Contracts) ”), together with all material amendments, modifications waivers or other changes thereto (but subject, in each case, to redactions of pricing and assignments thereof. other competitively sensitive information to the extent required by Antitrust Law).
(c) Except as would not havereasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a Company Material Adverse Effectwhole, and except as set forth on Schedule 3.09(c), (i) each of the Company and its Subsidiaries has performed in all material respects all material obligations required to be performed by it and is not in material default under, in material breach of, nor in receipt of any written Claim of material default or material breach under, any Company Material Contract, (ii) 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 by the Company or any of its Subsidiaries under any Company Material Contract, and (iii) as of the date hereof, to the knowledge of the Company, there is no material breach or threatened material breach by the other parties to any Company Material Contract. Except as would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, and except for those that have terminated or expired in accordance with their terms, all of the Company Material Contracts is are valid and in full force and effect and all payments constitute legal, valid and other amounts required to be paid by Seller, binding obligations of the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contractssuch Subsidiary, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by are enforceable against the Company or its Subsidiaries under any such Subsidiary in accordance with their respective terms (except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of equity), and, to the knowledge of the ContractsCompany, constitute legal, valid and (iii) since binding obligations of the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any or parties thereto, enforceable against such party or parties in accordance with their respective terms (except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws affecting creditors’ rights generally and subject, as to enforceability, to general principles of the Contractsequity).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Tenneco Inc)
Contracts and Commitments. (a) Schedule 4.15 NCW is either not a party to or has disclosed all of the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
(i) All following material contracts, commitments, agreements, leaseswhether oral or written, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries NCW is a party, or by which are currently in effect, and which relate to the Company or any operation of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was NCW’s business: (i) entered into outside the ordinary course of business consistent collective bargaining agreement or contract with past practice, or any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal; (iv) stock purchase, restricted stock or stock option plan or other equity compensation plan; (v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person; (vi) contract, agreement or understanding relating to the voting of NCW Common Stock or the election of directors of NCW; (vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of NCW; (viii) guaranty of any obligation for borrowed money or otherwise; (ix) lease or agreement under which NCW is lessee of, or holds or operates any property, real or personal, owned by any other party; (x) lease or agreement under which NCW is lessor of, or permits any third party to hold or operate, any property, real or personal; (xi) contract which prohibits NCW from freely engaging in business anywhere in the world; (xii) contract or commitment for capital expenditures; (xiii) agreement for the sale of any capital asset; or (xiv) other agreement which is either material to NCW’s business or was not entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsbusiness.
(b) The contracts To NCW’s Knowledge, NCW has performed all obligations required to be listed performed by it in connection with the contracts, understandings, arrangements or commitments described on Schedule 4.15(ain Section (a) above in all material respects and is not in receipt of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered any claim of default under any contract, understanding, arrangement or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts commitment required to be paid by Sellerdisclosed under such caption; NCW has no present expectation or intention of not fully performing any material obligation pursuant to any contract, the Company understanding, arrangement or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations commitment required to be disclosed under any of the Contracts, such caption; and FGCO has no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening Knowledge of any further condition could become a default breach or anticipated breach by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party to any contract, understanding, arrangement or commitment required to be disclosed under any of the Contractssuch caption.
Appears in 1 contract
Sources: Merger Agreement (Financial Gravity Companies, Inc.)
Contracts and Commitments. (a) Schedule 4.15 of 3.14 lists the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
(i) All material contracts, commitments, following agreements, leaseswhether oral or written, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries Lavenir is a party, or by which the Company or any of its Subsidiariesare currently in effect, their respective businesses or assets, or the Shares, are bound or affected or and which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was relate to Transferred Assets: (i) entered into outside the ordinary course of business consistent collective bargaining agreement or contract with past practice, or any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal; (iv) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person; (v) confidentiality agreement; (vi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the Transferred Assets; (vii) guaranty of any obligation for borrowed money or otherwise; (viii) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $25,000; (ix) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $10,000; (x) contract which prohibits Lavenir from freely engaging in business anywhere in the world; (xi) contract for the distribution of any of the products that comprise Transferred Assets; (xii) franchise agreement; (xiii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by Lavenir in connection with the Intellectual Property Rights related to the Transferred Assets; (xiv) other agreement which is either material to the Transferred Assets or was not entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsbusiness.
(b) The contracts Except as set forth on Schedule 3.14, Lavenir has performed all material obligations required to be listed performed by it in connection with the contracts or described on commitments required to be disclosed in Schedule 4.15(a3.14 and is not in receipt of any claim of default under any contract or commitment required to be disclosed under such schedule; Lavenir has no present expectation or intention of not fully performing any material obligation pursuant to any contract or commitment required to be disclosed under such schedule; and Lavenir has no knowledge of any breach or anticipated breach by any other party to any contract or commitment required to be disclosed under such schedule.
(c) of Prior to the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer Closing Date, GMI will have been supplied with a true, correct and complete copy of all each written Contracts (contract or commitment, and where oral, a written summary description of such each oral Contracts) contract or commitment, set forth on Schedule 3.14 together with all amendments, modifications and assignments thereof. Except as would not have, individually waivers or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractschanges thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Global Maintech Corp)
Contracts and Commitments. (a) Schedule 4.15 of Except as set forth on the attached Contracts Schedule, neither the Company Disclosure Schedule contains a list (and. where oral, a summary description) ofnor any of its Subsidiaries is party to any:
(i) All Contract relating to any completed material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which business acquisition or divestiture by the Company or such Subsidiary within the last three years;
(ii) collective bargaining agreement or Contract with any labor union, other than as listed on the Employment and Labor Matters Schedule;
(iii) material written bonus, pension, profit sharing, retirement or other form of its Subsidiaries is deferred compensation plan in each case, for employees located in the United States, other than as described in Section 3.12 hereof or the disclosure schedule relating thereto;
(iv) stock purchase, stock option or similar plan;
(v) Contract relating to any joint venture, partnership or similar arrangement;
(vi) Contract for the employment of any officer, individual employee or other person on a partyfull-time or consulting basis providing for fixed compensation in excess of $75,000 per annum;
(vii) Contract or indenture relating to the borrowing of money or to mortgaging, pledging or by which otherwise placing a Lien on any material portion of the Company Company’s or any of its Subsidiaries, their respective businesses ’ assets or assets, or the Shares, are bound or affected or which affect the consummation any letter of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes credit issued on behalf of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iiiviii) All employment agreements, consulting agreements and executive compensation plans affecting guaranty of any persons employed or retained by the Company or any of its Subsidiariesobligation for borrowed money;
(ivix) Any agreement containing covenants limiting Contract under which it is lessee of, or holds or operates any personal property owned by any other party, for which the freedom annual rental exceeds $50,000;
(x) 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;
(xi) Contract or group of related Contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and services has a selling price in excess of $100,000 (other than purchase orders entered into in the ordinary course of business);
(xii) Contract or group of related Contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $100,000 (other than sales orders entered into in the ordinary course of business);
(xiii) material Contract with any Holder or its Affiliates;
(xiv) settlement, conciliation or similar Contract with any Governmental Body that will involve payment after the date of the Latest Balance Sheet in excess of $50,000;
(xv) Real Property Leases;
(xvi) Contract that by its terms contains exclusivity or non-competition restrictions that restrict the ability of the Company or any of its Subsidiaries to compete in any line geographical area or business (other than confidentiality agreements entered into in the ordinary course of business or in any geographic location or to that only prohibit use or disclose any of the confidential information in its possessionof the party(ies) thereto);
(vxvii) Any license agreements involving Intellectual Property license, other than implied licenses attached to the Company sale of products or any click-wrap or shrink-wrap licenses to software that is generally commercially available at a total cost of its Subsidiaries less than $50,000; or
(as licensor or licenseexviii) other than licenses for Contract (or group of related Contracts) the use performance of off-the-shelf software programs;
(vi) Any agreement involving the Company or any which involves consideration in excess of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination $250,000 that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetscannot be terminated without penalty.
(b) The contracts required Parent and Merger Sub have been given access to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, true and correct and complete copy of all written Contracts (and where oral, a written summary description setting forth the material terms and conditions of such all oral Contracts that are referred to on the Contracts Schedule (each, a “Material Contract” and, collectively, the “Material Contracts) ”), together with all material amendments, modifications and assignments thereof. Except as would not have, individually waivers or in other changes thereto.
(c) As of the aggregate, a Company Material Adverse Effect, date hereof (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in material default of its obligations under any Material Contract, (ii) to the Company’s knowledge, the other party to each of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a Material Contracts is not in material default by the Company or its Subsidiaries under any of the Contracts, thereunder and (iii) since each Material Contract is legal, valid, binding, enforceable, and in full force and effect, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, or moratorium Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the Financial Date, no waiver has been granted by Seller or by the Company to any availability of specific performance and other party under any equitable remedies.
(d) No Shareholder Loan Amount is in excess of the Contractsamount of consideration that the applicable Shareholder is entitled to receive pursuant to Section 1.04 of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Polyone Corp)
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement or as set forth on the attached Contracts Schedule, the attached Intellectual Property Schedule, the attached Employees Schedule or the attached Employee Benefits Schedule, neither the Company nor any of its Subsidiaries is a party to or bound by any written or oral:
(a) Schedule 4.15 pension, profit sharing, equity option or other plan or arrangement providing for deferred or other compensation to employees or any other employee benefit plan or arrangement or practice, whether formal or informal, involving the payment of the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:consideration in excess of $10,000 to any individual;
(ib) All material contractscollective bargaining agreement or any other contract with any labor union, commitments, or any severance agreements, leasesprograms, licensespolicies or arrangements;
(c) contract with a casino or other gaming establishment that is listed on the Customers Schedule attached hereto;
(d) contract with a provider of vault cash;
(e) contract or other agreement with First Data Corporation, undertakings and other arrangements to which FDFS Holdings, LLC or any of their Affiliates that restricts or otherwise impairs the business of the Company or any of its Subsidiaries is a party, or that involves payments by which or payments to the Company or any of its SubsidiariesSubsidiaries of amounts in excess of $100,000 in any twelve-month period;
(f) management agreement or contract for the employment of any officer, their respective businesses individual employee or assetsother Person on a full-time, part-time, consulting or other basis providing annual cash or other compensation in excess of $150,000 or providing for the Shares, are bound payment of any cash or affected other compensation or which affect benefits upon the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking ;
(g) contract under which it has advanced or loaned monies in excess of $250,000 individually or in the aggregate to any other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was Person (i) entered into outside other than advances to its employees in the ordinary course of business consistent with past practice);
(h) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any asset or group of assets of the Company or any of its Subsidiaries or any letter of credit arrangements;
(iii) guaranty of any obligation for borrowed money or otherwise (other than endorsements made for collection in the ordinary course of business);
(j) lease or agreement under which it 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;
(k) lease or agreement 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, except for the placement and operation of cash access machines at gaming establishments in the ordinary course of business;
(l) inbound or outbound license, royalty, indemnification, assignment or other agreement relating to Intellectual Property Rights, except for a royalty-free license of off-the-shelf, unmodified, commercially available software for use (but not redistribution) by the Company or any of its Subsidiaries having an aggregate value for all related licenses thereof of less than $75,000;
(m) nondisclosure or confidentiality agreements (other than those entered into in the ordinary course of business consistent with past practice customers, suppliers, employees and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000potential business partners);
(iin) Any Real Property Lease entered into by contract or group of related contracts with the Company same party or any group of its Subsidiariesaffiliated 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 $250,000;
(iiio) All employment agreementscontract or group of related contracts with the same party or group of affiliated parties for the sale of supplies, consulting agreements products, equipment or other personal property or for the furnishing of services under which the undelivered balance of such products or services due from it has a selling price in excess of $250,000, which contracts need not be listed on the Contracts Schedule but shall be subject to the representations and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiarieswarranties in subparagraph 5M(ii) below;
(ivp) Any agreement containing covenants limiting material contract relating to the freedom marketing, sale, advertising or promotion of its products or services, other than contracts with gaming establishments entered into in the ordinary course of the Company Company’s business, which contracts need not be listed on the Contracts Schedule but shall be subject to the representations and warranties in subparagraph 5M(ii) below;
(q) agreements relating to the ownership of or any of its Subsidiaries to compete investments in any line of business or enterprise, including investments in joint ventures and minority equity investments;
(r) assignment, license, indemnification or other agreement with respect to any geographic location intangible property (excluding Intellectual Property Rights and excluding indemnification provisions in contracts with gaming establishments entered into in the ordinary course of the Company’s business, which contracts need not be listed on the Contracts Schedule but shall be subject to the representations and warranties in subparagraph 5M(ii) below);
(s) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights), other than pursuant to use the Membership Unit Purchase Agreement;
(t) material broker, agent, sales representative or disclose distribution agreement or agreement relating to the export and/or import of any information in its possessiongoods or equipment;
(u) power of attorney or other similar agreement or grant of agency;
(v) Any license agreements involving contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programsworld;
(viw) Any agreement involving the Company contract or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any Governmental Entity (other than in the ordinary course of business as are usual and customary with respect to the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntarybusiness); andor
(x) Any other agreement under which any Person has any direct is material to its operations or indirect pecuniary interest business prospects or involves an annual consideration in excess of $250,000, whether or not in the Company or any ordinary course of its material assetsbusiness.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contracts.
Appears in 1 contract
Sources: Securities Purchase and Exchange Agreement (Central Credit, LLC)
Contracts and Commitments. (a) Schedule 4.15 of the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not haveset forth on the attached Contracts Schedule, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under party to any: (i) agreement relating to any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default material business acquisition by the Company or its Subsidiaries under such Subsidiary within the last two years, (ii) collective bargaining agreement or contract with any labor union, (iii) written bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 4.12 hereof or the schedules relating thereto, (iv) stock purchase, stock option or similar plan, (v) material contract for the employment of any officer, individual employee or other individual on a full-time or consulting basis, (vi) agreement or indenture relating to the borrowing of money (including agreements related to off-balance-sheet financings) or to mortgaging, pledging or otherwise placing a Lien (other than Permitted Liens) on any of the ContractsCompany’s or any Subsidiary’s assets, (vii) guaranty of any obligation for borrowed money or other material guaranty, (viii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $500,000, (ix) lease or agreement 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 $500,000, (x) contract or group of related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and services has a selling price in excess of $2,000,000 (other than purchase orders entered into in the ordinary course of business), (xi) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000,000 (other than purchase orders entered into in the ordinary course of business), (xii) contract which prohibits the Company or any of its Subsidiaries from freely engaging in business anywhere in the world (other than confidentiality agreements entered into in the ordinary course of business), or (xiii) any agreement relating to any interest rate, currency, or commodity derivatives or hedging transaction.
(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 the Contracts Schedule, together with all material amendments, waivers or other changes thereto.
(c) To the Company’s knowledge, (i) neither the Company nor any Subsidiary is in default or other breach in any material respect under any contract listed on the Contracts Schedule, and (iiiii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any to each of the Contractscontracts listed on the Contracts Schedule is not in default or other material breach thereunder, and each such contract is in full force and effect.
Appears in 1 contract
Sources: Unit Purchase Agreement (Alliance Laundry Systems LLC)
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement or as set forth on the attached Contracts Schedule 6P, none of the Company or any of its Subsidiaries is a party to or bound by any written or oral:
(a) Schedule 4.15 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;
(b) collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(c) management agreement or contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis (i) providing annual cash or other compensation in excess of $10,000, (ii) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby or (iii) 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;
(d) contract or agreement involving any Governmental Entity;
(e) 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 Disclosure Schedule contains a list (and. where oral, a summary descriptionor any of its Subsidiaries) of:or any letter of credit arrangements;
(if) All material contractsGuarantee, commitments, agreements, leases, licenses, undertakings and other arrangements to than endorsements made for collection in the ordinary course of business or the Manc▇▇▇ ▇▇▇rantee;
(g) lease or agreement under which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside lessee of or holds or operates any personal property, owned by any other party, except for any lease of personal property under which the ordinary course of business consistent with past practice, aggregate annual rental payments do not exceed $25,000 or (ii) entered into in the ordinary course lessor of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into permits any third party to hold or operate any property, real or personal, owned or controlled by the Company or any of its Subsidiaries;
(iiih) All employment agreementscontract or group of related contracts with the same party or group of affiliated parties for the purchase or sale of raw materials, consulting agreements commodities, supplies, products, equipment or other personal property or services under which the undelivered balance since December 31, 1999 of such products and executive compensation plans affecting any persons employed services has a selling price in excess of $25,000;
(i) other contract or retained 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 the Company or any of its SubsidiariesSubsidiaries upon 30 days' or less notice without penalty or involving more than $25,000;
(ivj) Any contract relating to the marketing, sale, advertising or promotion of its products;
(k) agreements relating to the ownership of, investments in or loans and advances to any Person, including investments in joint ventures and minority equity investments;
(l) license, royalty, indemnification or other agreement with respect to any intangible property (including any Intellectual Property Rights);
(m) broker, agent, sales representative, sales or distribution agreement;
(n) power of attorney or other similar agreement or grant of agency;
(o) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world, including any nondisclosure or confidentiality agreements;
(p) contract or agreement containing covenants limiting a change of control provision or other provision requiring the freedom payment of severance other than the Phantom Plan and the Stock Option Plan; or
(q) other agreement which involves a consideration in excess of $100,000 annually, whether or not in the ordinary course of business.
(ii) All of the contracts, agreements and instruments set forth or required to be set forth on the attached Contracts Schedule 6P (the "Material Contracts") are valid, binding and enforceable in accordance with their respective terms, except as such enforceability may be limited by (x) applicable insolvency, bankruptcy, reorganization, moratorium or other similar laws affecting creditors' rights generally and (y) applicable equitable principles (whether considered in a proceeding at law or in equity). Each of the Material Contracts shall be in full force and effect without penalty in accordance with its terms upon consummation of the transactions contemplated hereby. Each of the Company and its Subsidiaries has performed all obligations required to be performed by it and is not in default under or in breach of nor in receipt of any claim of default or 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 default, breach or event of noncompliance by the Company or any of its Subsidiaries under any Material Contract; and none of the Company or any of its Subsidiaries to compete in has any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment knowledge of any severance pay breach or payment upon cancellation or anticipated breach or cancellation by the occurrence of a “change in control” agreement of the Company or other parties to any of its Subsidiaries, whether such payments Material Contract to which they are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsparties.
(biii) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller Purchaser has delivered or made available to Acquirer been supplied with a true, true and correct and complete copy of all each written Contracts (and where oralMaterial Contract, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not havewaivers or other changes thereto (all of which amendments, individually waivers or in other changes thereto are described on the aggregate, a Company Material Adverse Effect, (i) each of the attached Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the ContractsSchedule 6P).
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 3.9 hereto lists the following agreements, whether oral or written, to which OrangeHook or its Subsidiaries are a party, which are currently in effect, and which relate to the operation of OrangeHook's business or the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
business of each such Subsidiary: (i) All material contractscollective bargaining agreement or contract with any labor union; (ii) bonus, commitmentspension, agreementsprofit sharing, leasesretirement or other form of deferred compensation plan; (iii) stock purchase or stock option plan; (iv) contract for the employment of any officer, licensesindividual employee or other person on a full-time or consulting basis, undertakings and other arrangements than contracts for at-will employment without severance pay upon termination; (v) contract, agreement or understanding relating to which the Company voting of OrangeHook Common Stock or any OrangeHook Preferred Stock or the voting equity of its Subsidiaries is a party, or by which the Company or any of its OrangeHook's Subsidiaries, their respective businesses or assets, or the Shareselection of directors of OrangeHook or its Subsidiaries; (vi) agreement or indenture relating to the borrowing of money or to mortgaging, are bound pledging or affected or which affect the consummation otherwise placing a lien on any of the transactions contemplated hereby. Any contractassets of OrangeHook or its Subsidiaries; (vii) guaranty of any obligation for borrowed money or otherwise; (viii) lease or agreement under which OrangeHook or its Subsidiaries are lessee of, commitmentor hold or operate any property, agreementreal or personal, leaseowned by any other party, licensefor which the annual rental exceeds $10,000; (ix) lease or agreement under which OrangeHook or its Subsidiaries are lessor of, undertaking or permit any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $10,000; (x) contract which prohibits OrangeHook or its Subsidiaries from freely engaging in business anywhere in the world; (xi) license agreement or agreement providing for the payment or receipt of royalties or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(icompensation by OrangeHook or its Subsidiaries in connection with the intellectual property rights listed in Schedule 3.22(b) if it is or was hereto (i) entered into outside the ordinary course of business consistent with past practice, or (ii) other than contracts entered into in the ordinary course of business consistent with past practice and involves payments consideration of no more than $50,000); (xii) contract or receipts commitment for capital expenditures in excess of Fifty Thousand Dollars $10,000; ($50,000);
xiii) agreement for the sale of any capital asset; (iixiv) Any Real Property Lease entered into contracts, understandings, arrangements or commitments with respect to the acquisition and/or use by the Company OrangeHook or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business Intellectual Property of others or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any by others of its Subsidiaries (as licensor or licensee) other than licenses for the use Intellectual Property of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s OrangeHook or its Subsidiaries’ current ; or former officers, directors or employees providing (xv) other agreement for the payment purchase or sale of any severance pay goods or payment upon the occurrence services with an undelivered balance of a “change in control” agreement of the Company $50,000 or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsmore.
(b) The contracts To OrangeHook's Knowledge, OrangeHook and its Subsidiaries have performed all obligations required to be listed performed by it in connection with the contracts, understandings, arrangements or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts commitments required to be paid by Sellerdisclosed in Schedule 3.9hereto and are not in receipt of any claim of default under any contract, the Company understanding, arrangement or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of commitment required to be disclosed under such caption; OrangeHook and its Subsidiaries is in default have no present expectation or intention of its obligations not fully performing any material obligation pursuant to any contract, understanding, arrangement or commitment required to be disclosed under any of the Contracts, such caption; and OrangeHook has no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening Knowledge of any further condition could become a default breach or anticipated breach by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party to any contract, understanding, arrangement or commitment required to be disclosed under any of the Contractssuch caption.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 of Except as set forth on the attached Contracts Schedule, neither the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
nor any Subsidiary is party to any: (i) All collective bargaining agreement or contract with any labor union; (ii) written bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 4.13 or the schedules relating thereto; (iii) stock purchase, stock option or similar plan; (iv) written contract for the employment or engagement of any officer, individual employee or other person on a full-time or consulting basis; (v) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any material contractsportion of the Company's or any Subsidiary's assets; (vi) guaranty of any obligation for borrowed money or other material guaranty; (vii) lease, commitmentslicense, agreementsor agreement under which it is lessee or licensee of, leasesor holds or operates any personal property owned by any other party, licensesfor which the annual rental exceeds $25,000; (viii) lease or license agreement under which it is lessor or licensor of or permits any third party to hold or operate any property, undertakings real or personal, for which the annual rental exceeds $25,000; (ix) contract or group of related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and other arrangements to services has a selling price in excess of $25,000; (x) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $25,000; or (xi) contract which prohibits the Company or any Subsidiary from freely engaging in business anywhere in the world; (xii) any software license or contract (excluding licenses for "off the shelf" software which is generally commercially available), (xiii) contracts under which any rights in and/or ownership of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation material part of the transactions contemplated hereby. Any contractcustomer base, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment assets of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has shares or other ownership interests in any direct or indirect pecuniary interest in of the Company or any of its material assetsSubsidiaries was acquired; and (xiv) any other agreement, arrangement or contract under which the Company or any of its Subsidiaries has any ongoing obligations that contemplates or involves the payment or delivery of cash or other consideration in an amount or having a value in excess of $25,000 in the aggregate, or contemplates or involves the performance of services having a value in excess of $25,000 in the aggregate under which the Company or any of its Subsidiaries has any ongoing obligations, including without limitation, any escrow agreements or indemnification agreements.
(b) The Buyer either has been supplied with, or has been given access to, true and correct copies of all written contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule which are referred to in this Agreement as on the “Contracts.” Seller has delivered or made available to Acquirer a trueContracts Schedule, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications waivers or other changes thereto.
(c) Other than under Section 10.15 of the Stock Purchase Agreement, dated July 17, 1998, by and assignments thereofamong the Company, International Account Systems, Inc., ▇▇▇▇▇▇ ▇. Except as ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ & Michaels, Inc. (the "IAS Purchase Agreement"), neither the Company nor any Subsidiary is in default under any contract listed on the Contracts Schedule, except where such default would not have, individually or in the aggregate, have a Company Material Adverse Effect, (i) each . To the knowledge of the Contracts Company, each such contract is in full force and effect in accordance with its terms and all payments and other amounts required in accordance with any amendments to be paid by Seller, the Company or any of its Subsidiaries, such contract which have become duebeen disclosed or made available to Buyer. Except as set forth in Contracts Schedule, have been paid, (ii) neither the Company nor any Subsidiary has given or received written notice of its Subsidiaries is in a material default or notice of its obligations under any of the Contracts, and no event, occurrence, condition or act which, termination with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company respect to any other party under any of contract listed in the ContractsContracts Schedule.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 4.09(a) (as further organized by the applicable subsection of this Section 4.09(a)) sets forth a list as of the date of this Agreement of each of the following types of contracts currently in effect to which any of the Company Disclosure Schedule contains or its Subsidiaries is a list party (and. where oraleach, a summary description) of:“Significant Contract” and, collectively, the “Significant Contracts”):
(i) All material contractscollective bargaining agreement or other agreement with any union or labor organization;
(ii) bonus, commitmentspension, agreementsprofit sharing, leasesretirement or other form of deferred compensation plan, licensesPension Plan, undertakings Welfare Plan or other Plan;
(iii) stock purchase plan, stock option plan or similar plan and each individual award agreement thereunder;
(iv) contract with any officer, individual employee or other arrangements person on an employment or consulting basis providing for fixed compensation in excess of $75,000 per annum;
(v) any change in control agreement with any employee or consultant, including any agreement that provides for any payment to an employee or consultant upon consummation of the transactions contemplated by this Agreement;
(vi) any contract under which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or has advanced (other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into than in the ordinary course of business consistent with past practice and involves payments business) or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or loaned any amount to any of its Subsidiariesshareholders, directors, officers or employees;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development any contract that limits the incurrence of Indebtedness or partnership agreement the declaration or similar agreement or arrangement involving payment of dividends by the Company or any of its Subsidiaries;
(viii) Any agreement any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts relating to the borrowing of indemnification money or guaranty involving extension of credit (whether incurred, assumed, guaranteed or secured by any asset), other than (A) accounts receivables and payables, and (B) loans to or intercompany indebtedness between Subsidiaries;
(ix) lease, license or other contract under which it is lessee or licensee of, or holds or operates any property, real or personal, or any Intellectual Property owned by any other party, for which the annual rental or license fee exceeds $25,000, other than “shrink wrap” and similar generally available commercial end-user licenses to software that have an individual acquisition cost of $25,000 or less;
(x) lease, license or other contract under which it is lessor or licensor of or permits any third party to hold or operate any property, real or personal, or any Intellectual Property for which the annual rental or license fee exceeds $25,000, other than agreements with customers of the Company entered into in the ordinary course of business;
(xi) any contract (w) containing “most favored nation” pricing terms or grants to any Person of any right of first offer or right of first refusal or exclusivity, (x) limiting the ability of the Company or any Subsidiary to engage in any business or to compete with a third party, (y) containing any non-solicitation, no-hire or similar provisions that restrict the Company or any of its Subsidiaries, or (z) containing any commitment of the Company or any of its Subsidiaries to meet any specified purchase or sale levels or containing any commitment by the Company or any of its Subsidiaries to a “take or pay” or similar provision;
(xii) any contract entered into during the three-year period ending on the date hereof relating to (i) the acquisition or disposition by the Company or any of its Subsidiaries of any business, division or product line or the capital stock or material assets of any other Person, in each case (A) for consideration in excess of $100,000 or the equivalent in other currencies or (B) pursuant to which any liabilities or obligations of the Company or its Subsidiaries remain outstanding or (ii) any merger or business combination of the Company or any of its Subsidiaries;
(ixxiii) Any agreement contract or group of related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and services has a selling price in excess of $50,000 (other than purchase orders entered into in the ordinary course of business);
(xiv) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $50,000 (other than sales orders entered into in the ordinary course of business);
(xv) any contract or commitment to become a party to any joint venture, partnership or similar arrangement (including any structured finance, special purpose or limited purpose vehicle or other “off-balance sheet” arrangement);
(xvi) any contract for the acquisition, disposition or exclusive license of Intellectual Property by or to the Company or any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for ;
(xvii) any contract involving the payment settlement of any severance pay Legal Proceeding (A) under which the conditions have not been fully satisfied or payment upon (B) that contain limitations on the occurrence of a “change in control” agreement operations of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and;
(xxviii) Any agreement under which any Person has contract with a Governmental Body; or
(xix) any direct or indirect pecuniary interest in contract with an Affiliate of the Company or any of its material assetsSubsidiaries or any current or former controlling shareholder, officer or director of the Company or any of its Subsidiaries (excluding contracts that relate to such Person’s employment or other position (including as a director or officer) with the Company or its Subsidiaries, such as employment offer letters, except to the extent such contract should otherwise be disclosed under this Section 4.09(a)).
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts Each Significant Contract (x) is in full force and effect and all payments and other amounts required with respect to be paid by Seller, the Company or any its Subsidiaries, as the case may be, and, to the knowledge of the Company, the other parties thereto, (y) is a valid and legally binding obligation of the Company or its Subsidiaries, as the case may be, and, to the knowledge of the Company, of the other parties thereto, and (z) is enforceable against the Company or its Subsidiaries, as the case may be, and, to the knowledge of the Company, the other parties thereto, in accordance with its 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, and (ii) the Company or one of its Subsidiaries, which have become dueas the case may be, have been paid, has performed all material obligations required to be performed by it to date under the Significant Contracts and is not (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition with or act which, with the giving of notice, without the lapse of time or the happening giving of notice, or both) in breach or default in any material respect thereunder. To the Company’s knowledge, the other parties to any such Significant Contract have performed all material obligations required to be performed by them to date under the Significant Contracts and none of the other parties to any such Significant 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.
(c) The Company has made available a true and correct copy of all written Significant Contracts, together with all schedules, exhibits, amendments, waivers or other changes thereto, and a written description of the material terms of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractsoral Significant Contract.
Appears in 1 contract
Sources: Merger Agreement (Datalink Corp)
Contracts and Commitments. (a) Schedule 4.15 Section 3.12(a) of the Company Disclosure Schedule contains sets forth a complete and accurate list or description of each of the following Contracts which are in effect on the Effective Date (and. where oralor any groups of related or similar Contracts, including any series of Contracts under a summary descriptionmaster agreement and including statements or work and purchase orders) of:(“Material Contracts”):
(i) All material contractsContracts that are not terminable by the Company on fewer than sixty (60) days notice without payment by or penalty, commitmentsliability or other adverse consequence to the Company;
(ii) Contracts that involve payments based on sharing profits or revenues of the Company or that create a partnership, agreementsjoint venture or an alliance, leases, licenses, undertakings and other arrangements referral or reseller relationship;
(iii) Contracts that are required to be set forth on Section 3.20(b) of the Company Disclosure Schedule;
(iv) Contracts that involve a specific commitment of Company resources having value exceeding $25,000 individually;
(v) Contracts that pertain to projects commonly known as “fixed price/deliverable based projects” as to which the Company or has not completed performance in any respect;
(vi) Contracts that relate to capital expenditures exceeding $25,000 individually to be made after the date of this Agreement;
(vii) Contracts that (A) impose a Lien on any of its Subsidiaries is a partythe Company’s assets; (B) create, incur or by which guarantee any Indebtedness of the Company or to any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practicePerson, or (iiC) assume, or otherwise become liable for, the obligations of any other Person;
(viii) Contracts that relate to the disposition or acquisition of material assets or any interest in any business enterprise (including any Liability related to or arising out of any acquisition or other business combination such as any earn-out, performance, bonus or other contingent payment arrangement, however such arrangement may be evidenced) not in the Ordinary Course of the Company;
(ix) Outbound Intellectual Property Contracts that are required to be set forth on Section 3.13(e) of the Company Disclosure Schedule (except for Outbound Intellectual Property Contracts entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000business);
(iix) Any Real Property Lease entered into by Contracts with Company Employees granting any bonus, severance benefits, change of control benefits, or termination pay (in cash or equity or otherwise) to any Employee with respect to which the Company has or may have any of its Subsidiariesliability or obligation, in each case, except as required under applicable law, or Contracts with any labor union, works council or similar organization;
(iiixi) All employment Contracts that are non-disclosure agreements, consulting agreements and executive compensation plans affecting other than those entered into with any persons employed actual or retained by prospective customer, reseller, distributor, partner, contractor, prospective employee or vendor in the Ordinary Course or those entered into with Company Employees or any of its Subsidiariesconsultants in such capacity;
(ivxii) Any agreement containing covenants limiting Contracts that (A) include any non-competition or non-solicitation covenant or similar arrangement that limits the freedom right of the Company to engage in, or any of its Subsidiaries to compete (geographically or otherwise) in any line of business or with any other Person anywhere in the world or (B) grant exclusive rights of any geographic location type or to use or disclose any information in its possessionscope;
(vxiii) Any license agreements involving Contracts that provide for indemnification by or of the Company or any of its Subsidiaries (as licensor or licensee) other than licenses excluding indemnification for third party infringement claims caused by a Company Product that is contained in the use of off-the-shelf software programsCompany’s standard Contract with customers entered into in the Ordinary Course);
(vixiv) Any agreement involving the Company Contracts that contain “most favored nation” provisions or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development similar preferred pricing provision requiring that a third party be offered terms or partnership agreement concessions at least as favorable as those offered to one or similar agreement or arrangement involving the Company or any of its Subsidiariesmore other parties;
(viiixv) Any agreement of indemnification or guaranty involving the Company or Contracts with any of its SubsidiariesGovernmental Authority;
(ixxvi) Any agreement with any of Contracts that relate to the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment settlement of any severance pay or payment upon the occurrence of a “change in control” agreement Proceeding;
(xvii) Contracts with suppliers of the Company or any of its Subsidiaries, whether such payments are payable upon with a termination that is voluntary or non-voluntary; andvalue exceeding $25,000 individually;
(xxviii) Any agreement under which Contracts establishing powers of attorney, other than routine powers of attorney relating to representation before governmental agencies;
(xix) collective bargaining agreements or other agreements or arrangements with any Person has any direct labor union, trade union or indirect pecuniary interest works council; or
(xx) Contracts that have a restriction on assignment on the Company in the Company or any event of its material assetsa change of control.
(b) The contracts required Prior to be listed or described on Schedule 4.15(a) the date of this Agreement, the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer Purchaser a true, correct and complete copy of all written Contracts (and where oraleach Material Contract, a written summary description of such oral Contracts) together with including all amendments, modifications and assignments thereof. Except as would not have, individually supplements thereto through the date of this Agreement (or in the aggregate, a Company Material Adverse Effect, (i) each written description of the Contracts material terms of any Material Contract that is not written).
(c) Each Material Contract is a valid, binding and enforceable obligation of the Company in accordance with its terms against the Company and, to the Knowledge of the Company, against each other party thereto (in each case, subject to General Enforceability Exceptions), and is in full force and effect and all payments and other amounts required to be paid effect.
(d) There is no existing default by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, Material Contracts and no eventevent has occurred or, occurrenceto the Knowledge of the Company, condition that (whether with or act which, with the giving of without notice, the lapse of time or the happening or occurrence of any further condition could become a other event) would reasonably constitute default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by subject the Company to any other party penalty or liquidated damages, under any Material Contract.
(e) The Company has not received any notice or other written communication from any Person regarding (A) any actual or alleged breach of, default under or failure to comply with any term or requirement of any Material Contract; or (B) any actual or proposed revocation, withdrawal, suspension, cancellation, termination or amendment to any Material Contract.
(f) The Company has not received notice of and, to the Knowledge of the ContractsCompany, there are no existing defaults by any other Person party to a Material Contract; and, to the Knowledge of the Company, no event has occurred or that with or without notice, lapse of time or the happening or occurrence of any other event, would reasonably constitute a default under any Material Contract by any other Person party thereto (other than the Company).
Appears in 1 contract
Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth in Schedule 4.15 3.8, Schedule 3.9, Schedule 3.10 or Schedule 3.15, Seller is not a party to or bound by, whether written or oral, any of the Company Disclosure Schedule contains a list (and. where oral, a summary description) offollowing executory agreements or arrangements if an Assumed Contract or an Assumed Liability:
(i) All material contractscontract for the employment of any officer, commitmentsindividual employee or other person on a full-time, agreementspart-time, leasesconsulting or other basis or contract relating to loans to officers, licensesdirectors, undertakings and other arrangements to which the Company employees or Affiliates or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000)severance agreements;
(ii) Any Real Property Lease entered into by agreement or indenture relating to the Company borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any of its Subsidiariesthe Purchased Assets;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting guarantee of any persons employed obligation for borrowed money or retained by the Company or any otherwise in excess of its Subsidiaries$10,000;
(iv) Any agreement containing covenants limiting material license or royalty agreements relating to the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possessionPurchased Assets (other than off-the-shelf software);
(v) Any license agreements involving material lease or agreement under which it is lessee of, or holds or operates, any personal property owned by any other party which constitutes a part of the Company Purchased Assets;
(vi) lease or agreement under which it is lessor of or permits any third party to hold or operate any Purchased Assets owned or controlled by Seller;
(vii) contract relating to the distribution, marketing or sales of its Subsidiaries products or the products of others by the Business;
(as licensor viii) contract or licensee) group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in excess of $25,000, other than licenses for the use of purchase orders cancelable upon less than 30 days notice;
(ix) assignment, license, indemnification or agreement with respect to any Intangible Property (other than off-the-shelf software programssoftware);
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any warranty agreement under with respect to its services rendered or its products sold or leased;
(xi) agreement relating to any business acquisition, merger, sale or purchase of substantial assets, equity financings, recapitalizing or reorganizations;
(xii) agreement involving payments in excess of $10,000 with a term of more than six months which is not terminable by Seller upon less than 30 days notice without penalty;
(xiii) contract or agreement prohibiting it from freely engaging in any Person has any direct business or indirect pecuniary interest competing anywhere in the Company or world; or
(xiv) any of its other agreement which is material assetsto the Business.
(b) The contracts All of the contracts, agreements and instruments set forth on Schedule 3.9 are valid, binding and enforceable against Seller in accordance with their respective terms. Seller has performed in all material respects all obligations required to be performed by it under the contracts, agreements and instruments listed or described on Schedule 4.15(a3.9 and is not in default under or in breach of nor in receipt of any claim (other than credit or debit memos of less than $60,000) of default or breach under any contract, agreement or instrument listed on Schedule 3.9; no event has occurred which with the Company Disclosure passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by Seller under any contract, agreement or instrument listed on Schedule are referred to in this Agreement as the “Contracts.” 3.9 ; Seller does not have any present expectation or intention of not fully performing all such obligations; Seller has delivered no Knowledge of any breach or made available anticipated breach by the other parties to Acquirer any contract, agreement, instrument or commitment listed on Schedule 3.9; and Seller is not a true, party to any contract or commitment which would have a Material Adverse Effect.
(c) Seller has provided Designated Buyer with a true and correct and complete copy of all written Contracts (and where oralcontracts which are required to be disclosed on Schedule 3.9, a written summary description of such oral Contracts) in each case together with all amendments, modifications waivers or other changes thereto (all of which are disclosed on Schedule 3.9). Schedule 3.9 contains an accurate and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each complete description of the Contracts is in full force and effect and all payments and other amounts required material terms of all oral contracts referred to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractstherein.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 3.09 or with respect to any Company Employee Benefit Plan set forth on Schedule 3.13(a), no Group Company as of the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
date hereof is party to any: (i) All Contract relating to any Financial Indebtedness (including any commitment with respect to Financial Indebtedness) or any Contract granting, creating or otherwise providing for any Lien (other than a Permitted Lien) on assets of any of the Group Companies to secure any Financial Indebtedness; (ii) joint venture, strategic alliance, reseller agreement or partnership agreements; 30 [[6907028]] (iii) guaranty of any Financial Indebtedness or other material contractsguaranty (other than any guaranty of any obligation or liability solely of any Group Company); (iv) lease or agreement under which it is lessee of, commitmentsor holds or operates any personal property owned by any other party, agreementsfor which the annual rental exceeds $750,000 (excluding the Real Property Leases); (v) Contract or group of related Contracts with the same party or its affiliated entities for the purchase or disposition of products or services, leasesbusiness or other material assets (whether by merger, licensessale of equity interests, undertakings and sale of assets or otherwise) that provide for annual payments by a Group Company in excess of $750,000 in the aggregate; (vi) Contract or group of related Contracts with a customer (including any carrier or broker) or its affiliated entities that provides annual net revenues (based on any 12-month period) to the Group Companies in excess of $1,000,000; (vii) Contract under which a Group Company (A) is granted a license to use any material third party Intellectual Property (other arrangements than Incidental Licenses) or (B) grants to which any Person a license to use any material Owned Intellectual Property (other than non-exclusive licenses granted in the Ordinary Course of Business); (viii) Contract relating to the ownership by the Company or any of its Subsidiaries is of any joint venture interest or other equity ownership interest in any other corporation, organization or entity; (ix) Contract that (A) contains a partyput, call or by similar right pursuant to which the Group Companies would be required to purchase or sell, as applicable, any equity interests or assets of any Person or (B) grants any rights of first refusal, rights of first offer, option to purchase, acquire, sell or dispose or other similar rights to any Person with respect to any material asset of the Group Companies; (x) Real Property Leases; (xi) Contract required to be disclosed on Schedule 3.18; (xii) Contract that materially prohibits any Group Company from competing in the business of the Group Companies as conducted in the Ordinary Course of Business; (xiii) collective bargaining agreement, labor contract or other written agreement or arrangement with any labor union or any of its Subsidiaries, their respective businesses employee organization or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitmentagreement or arrangement with a professional employer organization; (xiv) Contract or series of related Contracts relating to the acquisition or disposition of any business, agreementcapital stock or assets (by merger, leaseconsolidation, license, undertaking acquisition of stock or assets or otherwise) of any other arrangement shall be considered “material” Person providing for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom indemnification obligations of the Company or any of its Subsidiaries or “earn-out” or other contingent obligations or deferred or withheld payment obligations to compete in any line of business the extent such indemnification 31 [[6907028]] obligations or in any geographic location “earn-out” or to use other contingent obligations or disclose any information in its possession;
(v) Any license agreements involving the Company deferred or any of its Subsidiaries (withheld payment obligations are outstanding as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntarydate hereof; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contracts.
Appears in 1 contract
Sources: Unit Purchase Agreement (White Mountains Insurance Group LTD)
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 of 5.10(a) (and other than a Plan), neither the Company Disclosure Schedule contains nor any of its Subsidiaries is a list (and. where oral, a summary description) ofparty to any:
(i) All material contractscollective bargaining agreement with any labor union, commitmentslabor organization or works council representing employees of the Company or any of its Subsidiaries;
(ii) Contract with any officer, agreements, leases, licenses, undertakings and other arrangements to which director or employee of the Company or any of its Subsidiaries is a partythat (A) provides for base annual compensation in excess of $250,000, (B) provides for the payment of compensation or by which the Company benefits upon or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect in connection with the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of by this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, Agreement or (iiC) entered into in provides for the ordinary course payment of business consistent with past practice and involves severance, termination or notice payments or receipts in excess benefits (other than statutory payments and benefits required by Law) upon a termination of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the applicable person’s employment or service with the Company or any of its Subsidiaries;
(iii) All employment agreementsany settlement, consulting agreements and executive compensation plans affecting conciliation or similar agreement with any persons employed Governmental Body or retained similar Contract pursuant to which (a) the Company or any of its Subsidiaries will have any outstanding payment obligation in excess of $20,000 after the date of this Agreement, or (b) material non-monetary obligations will be imposed on either the Company or its Subsidiaries after the date of this Agreement;
(iv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries (excluding, for the avoidance of doubt, in respect of any customs, licensing, bid, surety or performance bonds, or any similar instruments);
(v) guaranty of any obligation for borrowed money or other guaranty;
(vi) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $100,000;
(vii) lease or agreement 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 $100,000;
(viii) other than purchase orders or statements of work entered into in the ordinary course of business, Contract or group of related Contracts with any Material Customer;
(ix) other than purchase orders or statements of work entered into in the ordinary course of business, Contract or group of related Contracts with any Material Supplier;
(x) 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, other than (A) licenses for commercially available, Off-The-Shelf software or (B) non-exclusive licenses granted in the ordinary course of business;
(ivxi) Any agreement containing covenants limiting Contracts relating to the freedom acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or material line of business entered into since the Lookback Date or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or material line of business;
(xii) all Contracts that grant a third Person any right of first refusal or right of first offer or that otherwise purport to limit the ability of the Company or any of its Subsidiaries to own, sell, transfer, pledge or otherwise dispose of any material portion of the assets or business of the Company or any of its Subsidiaries (other than the Ancillary Agreements) or that purports to limit the ability of the Company or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic location area or to use or disclose during any information in its possessionperiod of time;
(vxiii) Any license agreements involving Contracts with material data vendors under which the Company or any of its Subsidiaries has acquired data that is used in any of the Company’s or any of its Subsidiaries’ models that are made available as of the date of this Agreement;
(xiv) any Contract providing for the development, modification or delivery, deposit into escrow, or release from escrow, of any Company Intellectual Property, independently or jointly, by or for the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for Contracts from employment and independent contractor agreements) or that otherwise materially and adversely affects the use of off-the-shelf software programs;
(vi) Any agreement involving or enforcement by the Company or any of its Subsidiaries for the development of Software, any Company Intellectual Property (including any components of Company Softwaresettlement agreement, covenant not to assert and consent to use), in each case, other than Contracts with employees or any contingent workers that are on the Company’s standard forms;
(viixv) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving all Contracts to which the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification Subsidiaries is a party that provide for any joint venture, partnership or guaranty involving similar arrangement with the Company or any such Subsidiary, excluding the Governing Documents of the Company and its Subsidiaries;
(ixxvi) Any agreement with any of all Leases;
(xvii) all Contracts between the Company’s or Company and/or its Subsidiaries’ current or former officers, directors or employees providing for on the payment of one hand, and any severance pay or payment upon Company Affiliated Person, on the occurrence of a “change in control” agreement of other hand;
(xviii) all Government Contracts involving any payments to the Company or any its Subsidiaries in excess of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary$500,000 per annum; and
(xxix) Any agreement under which any Person has commitment to enter into any direct or indirect pecuniary interest in Contract of the Company or any of its material assetstype described above.
(b) The contracts required to be listed or described on Schedule 4.15(a) As of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a truedate hereof, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts listed on Schedule 5.10(a) (each, a “Material Contract”) is in full force and effect effect, and all payments is a legal, valid and other amounts required to be paid by Seller, binding obligation of the Company or any a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its Subsidiariesterms, which have become duein each case, have been paidsubject to bankruptcy, (ii) insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Except as set forth on Schedule 5.10(b), as of the date hereof, neither the Company nor any Subsidiary of its Subsidiaries the Company (as applicable) is in material default (with or without notice or lapse of its obligations time or both) under any Material Contract, and, to the knowledge of the ContractsCompany, and the other party to each Material Contract is not in material default (with or without notice or lapse of time or both) thereunder. Except as set forth on Schedule 5.10(b), as of the date hereof, no event, occurrence, condition or act which, event has occurred that with the giving of notice, the lapse of time or the happening giving of notice or both would constitute a material breach or default (with or without notice or lapse of time or both) on the part of the Company, or any further condition could become a default by Subsidiary of the Company or its Subsidiaries under any or, to the knowledge of the ContractsCompany, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any Material Contract. To the knowledge of the ContractsCompany, as of the date hereof, (i) no party to any Material Contract has exercised any termination rights with respect thereto, and (ii) no party has given written notice of any material dispute with respect to any Material Contract. The Company has made available to Parent true and correct copies of each Material Contract (including all amendments, exhibits, attachments, waivers and other changes thereto).
Appears in 1 contract
Contracts and Commitments. (a) Except as filed as an exhibit to Seller’s SEC Reports, and except as contemplated by this Agreement, neither Seller, nor the Seller Subsidiaries, nor the entities listed on Schedule 4.15 3.1(b) is a party to or bound by any oral or written contract, obligation or commitment of any type in any of the Company Disclosure Schedule contains a list (and. where oral, a summary description) offollowing categories:
(i) All material contractsagreements or arrangements that contain severance pay, commitmentsunderstandings with respect to tax arrangements, agreements, leases, licenses, undertakings and other arrangements understandings with respect to which the Company or any of its Subsidiaries is a partyexpatriate benefits, or post-employment liabilities or obligations;
(ii) agreements or plans under which benefits will be increased or accelerated by which the Company or occurrence of any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contractby this Agreement, commitmentor under which the value of the benefits will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) agreements, agreement, lease, license, undertaking contracts or commitments currently in force relating to the disposition or acquisition of assets other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside than in the ordinary course of business, or relating to an ownership interest in any corporation, partnership, joint venture or other business consistent enterprise;
(iv) agreements, contracts or commitments for the purchase of materials, supplies or equipment, under which the aggregate payments for the past 12 months exceeded $100,000, which are with past practicesole or single source suppliers;
(v) guarantees or other agreements, contracts or commitments under which Seller or any of the Seller Subsidiaries is absolutely or contingently liable for (A) the performance of any other person, firm or corporation (other than Seller or the Seller Subsidiaries), or (iiB) entered into the whole or any part of the indebtedness or liabilities of any other person, firm or corporation (other than Seller or the Seller Subsidiaries);
(vi) powers of attorney authorizing the incurrence of a material obligation on the part of Seller or the Seller Subsidiaries;
(vii) agreements, contracts or commitments which limit or restrict (A) where Seller or any of the Seller Subsidiaries may conduct business, (B) the type or lines of business (current or future) in which they may engage, or (C) any acquisition of assets or stock (tangible or intangible) by Seller or any of the Seller Subsidiaries;
(viii) agreements, contracts or commitments, under which the aggregate payments or receipts for the past 12 months exceeded $100,000, containing any agreement with respect to a change of control of Seller or any of the Seller Subsidiaries;
(ix) agreements, contracts or commitments for the borrowing or lending of money, or the availability of credit (except credit extended by Seller or any of the Seller Subsidiaries to customers in the ordinary course of business and consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000practice);
(iix) Any Real Property Lease entered into by any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the Company or any exchange of its Subsidiaries;currency; or
(iiixi) All employment agreementsany agreement, consulting agreements and executive compensation plans affecting any persons employed contract or retained commitment otherwise required to be filed as an exhibit to a periodic report under the Exchange Act, as provided by Rule 601 of Regulation S-K promulgated under the Company Exchange Act. Each contract, agreement or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom commitment of the Company or any of its Subsidiaries type described in this Section 3.15 is referred to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (herein as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsSeller Contract.”
(b) The contracts required to be listed or described on Schedule 4.15(a) Neither Seller nor any of the Company Disclosure Schedule are referred Seller Subsidiaries, nor to in this Agreement as the “Contracts.” knowledge of Seller any other party to a Seller Contract, has delivered breached, violated or made available defaulted under, or received notice that it has breached, violated or defaulted under, (nor does there exist any condition under which, with the passage of time or the giving of notice or both, could reasonably be expected to Acquirer cause such a truebreach, correct and complete copy of all written Contracts (and where oralviolation or default under), a written summary description of such oral Contracts) together with all amendmentsany Seller Contract, modifications and assignments thereof. Except as would other than any breaches, violations or defaults which have not had, or could not reasonably be expected to have, individually or in the aggregate, a Company Seller Material Adverse Effect.
(c) Each Seller Contract is a valid, (i) each binding and enforceable obligation of Seller and to the knowledge of Seller, of the Contracts is other party or parties thereto, in accordance with its terms, and in full force and effect, except where the failure to be valid, binding, enforceable and in full force and effect has not had, or could not reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect and all payments to the extent enforcement may be limited by applicable bankruptcy, insolvency, moratorium or other laws affecting the enforcement of creditors’ rights governing or by general principles of equity.
(d) An accurate and other amounts required to be paid by Seller, the Company or any complete copy of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver each Seller Contract has been granted by Seller or by the Company made available (including via E▇▇▇▇) to any other party under any of the ContractsBuyer.
Appears in 1 contract
Contracts and Commitments. (an) Schedule 4.15 Section 4.09 of the Disclosure Schedules sets forth a true and complete list of each of the following contracts and other agreements to which the Company Disclosure Schedule contains or its Subsidiary is a list (and. where oralparty or to which any of the assets of the Company, a summary description) ofits Subsidiary or the Business are subject:
(i) All any collective bargaining agreement, as set forth in Section 4.16 of the Disclosure Schedules;
(ii) any written bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 4.13 or the Disclosure Schedules relating thereto;
(iii) any stock purchase, stock option or similar plan;
(iv) any contract for the employment of any officer, employee or other individual on a full-time or consulting basis providing for fixed compensation in excess of $100,000 per annum;
(v) any agreement or indenture relating to the borrowing of money, whether as borrower or lender, or to mortgaging, pledging or otherwise placing a Lien other than a Permitted Lien on any assets of the Company and its Subsidiary;
(vi) any guaranty of any obligation for borrowed money or other material contractsguaranty;
(vii) any lease or other agreement under which it is lessee of, commitmentsor holds or operates any tangible personal property owned by any other party, agreementsfor which the annual rental exceeds $150,000;
(viii) any lease or other agreement under which it is lessor of or permits any third party to hold or operate any tangible personal property for which the annual rental exceeds $150,000;
(ix) any contract or group of related contracts with the same party for the purchase of products or services (A) that requires annual payments to be made by the Company or its Subsidiary in excess of $150,000 or (B) that provided for annual payments by the Company or its Subsidiary in excess of $150,000 during the trailing twelve (12)-month period ending on the date of the Latest Balance Sheet;
(x) any agreements relating to any completed business acquisition or disposition by the Company or its Subsidiary (whether by merger, leasessale of stock, licensessale of assets or otherwise) entered into on or after February 1, undertakings and other arrangements 2013 or pursuant to which the Company or its Subsidiary has any continuing material obligation or Liability;
(xi) any contract or group of its Subsidiaries is related contracts with a party, client or customer for the sale of products or services that (A) requires annual payments in excess of $150,000 to be made by which such client or customer to the Company or any its Subsidiary or (B) provided for payments to the Company or its Subsidiary by such client or customer in excess of its Subsidiaries, their respective businesses or assets, or $150,000 during the Shares, are bound or affected or which affect trailing twelve (12)-month period ending on the consummation date of the transactions contemplated hereby. Any contractLatest Balance Sheet, commitmentin each case of (A) and (B), agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) than purchase orders entered into in the ordinary course of business consistent with past practice and involves payments business;
(xii) any license, royalty or receipts in excess other agreement relating to the use of Fifty Thousand Dollars any third party Intellectual Property (other than licenses for commercially available software licensed for a one-time fee of, or that have annual fees of, $50,00075,000 or less);
(iixiii) Any Real any license, royalty or other agreement relating to the use by any third party of Intellectual Property Lease entered into owned by the Company or any its Subsidiary (other than non-exclusive licenses granted to customers in the ordinary course of its Subsidiariesbusiness);
(iiixiv) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by contract which prohibits the Company or its Subsidiary from (1) freely engaging or competing in any business anywhere in the world or (2) soliciting for employment or hiring any Person (other than non-disclosure agreements entered into in the ordinary course of its Subsidiariesbusiness);
(ivxv) Any agreement containing covenants limiting the freedom any contract requiring future capital expenditure obligations of the Company or any its Subsidiary in excess of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession$150,000;
(vxvi) Any license agreements involving any contract with any independent contractor who provides services to the Company or any its Subsidiary or the Business that provides for annualized compensation in excess of its Subsidiaries (as licensor $100,000 individually or licensee) other than licenses for $250,000 in the use of off-the-shelf software programsaggregate;
(vixvii) Any any joint venture, partnership or other similar agreement or written arrangement involving co-investment or the sharing of revenues, profits, losses, costs or Liabilities between the Company or any of its Subsidiaries for Subsidiary or otherwise involves the development of SoftwareBusiness, including any components of Company Softwareon the one hand, and a third party on the other hand;
(viixviii) Any joint ventureany contract requiring the Company or its Subsidiary to pay royalties to a third party with respect to a product of the Business;
(xix) any material warranty or guarantee with respect to a contractual performance that is an obligation of the Company or its Subsidiary or otherwise involves the Business, joint development other than warranties or partnership guarantees provided to its customers in the ordinary course of business;
(xx) any contract requiring the Company or its Subsidiary to indemnify and hold harmless any Person, other than those entered into in the ordinary course of business;
(xxi) any contract containing a requirement to deal exclusively with or grant exclusive rights or rights of first refusal to any customer, vendor, supplier, distributor, contractor or other party. (it being understood that, for purposes of this Section 4.09, all purchase orders or similar arrangements, as applicable, shall be deemed incorporated by reference with respect to any underlying master agreement, multi-year agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;agreement).
(viiio) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any With respect to each contract listed in Section 4.09 of the Company’s Disclosure Schedules (collectively, the “Significant Contracts”), (i) each such Significant Contract is in full force and effect and is a valid and binding contract or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of and its SubsidiariesSubsidiary, whether such payments are payable upon a termination that is voluntary or non-voluntary; as applicable, and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in , to the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) knowledge of the Company Disclosure Schedule are referred Company, enforceable against the other parties thereto, in accordance with its terms, in each case, subject to the General Enforceability Exceptions and (ii) neither the Company, its Subsidiary nor, to the Company’s knowledge, any other party to any such Significant Contract is in this Agreement as breach or violation of, or default under, such Significant Contract and, to the “Contracts.” Seller knowledge of the Company, no event has delivered occurred that with or made available to Acquirer without notice or lapse of time or both would constitute a truebreach or default (whether by lapse of time or notice or both), correct and complete copy of all written Contracts (and where oralexcept, a written summary description of such oral Contracts) together with all amendmentsin each case, modifications and assignments thereof. Except as would not havereasonably be expected to be, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required material to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and Subsidiary (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractstaken as a whole).
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 Section 4.16(a) of the Company Seller Disclosure Schedule contains sets forth a correct and complete list of each of the following to which any Acquired Company is a party or by which it or its assets or the Business is bound or affected, whether written or oral (and. where oralcollectively, a summary description) of:
the "Contracts"): (i) All material contractscollective bargaining agreements or contracts with any labor union or any bonus, commitmentspension, profit sharing, retirement or any other form of deferred compensation plan; (ii) contracts relating to employment, confidentiality, non-competition and/or Proprietary Rights, and any agreement providing for severance or change of control benefits; (iii) agreements, leases, licenses, undertakings and indentures or other arrangements relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien on any of its assets; (iv) contracts under which such entity has advanced or loaned any other Person amounts in the aggregate exceeding $20,000; (v) contract relating to lending or investing of funds; (vi) licenses or royalty agreements; (vii) guarantees of any obligation, other than endorsements made for collection; (viii) management, consulting, advertising, marketing, promotion, technical services, advisory or other similar contracts or arrangements relating to the Business; (ix) agreements with any customer or material supplier; (x) leases or agreements under which it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $20,000 annually; (xi) leases or agreements 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; (xii) contracts or group of related contracts with the same party continuing over a period of more than six (6) months from the date or dates thereof, not terminable by it on thirty (30) days or less notice without penalties, or involving more than $20,000; (xiii) contracts which prohibit any Acquired Company or any of its Subsidiaries is a party, officers or by employees from freely engaging in business anywhere in the world; (xiv) agreements under which the Company consent of any Person or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation Governmental Authority is required as a result of the transactions contemplated hereby. Any by any of the Transaction Documents; (xv) joint venture agreements or agreements relating to the acquisition or sale of any company, business, division or other enterprise, whether in the form of stock purchase, asset acquisition or otherwise; (xvi) agreements, contracts or commitments for the purchase or sale of any goods or services at rates or terms which are materially different from generally available rates or terms, including purchase or sale commitments entered into in settlement of claims or prior obligations; or (xvii) agreements material to any Acquired Company whether or not entered into in the ordinary course.
(b) Each contract, commitment, agreement, lease, license, undertaking agreement or other arrangement shall commitment required to be considered “material” for purposes disclosed in Section 4.16(a) of this Section 4.15(a)(i) if it is or the Seller Disclosure Schedule was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice practices, is in full force and involves payments or receipts effect, is valid and enforceable in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of accordance with its Subsidiaries;
(iii) All employment agreementsterms, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom constitutes a legal and binding obligation of the Company Acquired Companies, and to the knowledge of Seller or AFT, each other party thereto. The Acquired Companies have neither given nor received, and, to the knowledge of Seller or AFT, no fact or circumstance exists which could reasonably be expected to give rise to, with the passage of time or the giving of notice or both, any material breach, notice of its Subsidiaries to compete in material default, termination or partial termination under any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Softwarecontract, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viiicommitment required to be disclosed in Section 4.16(a) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s Seller Disclosure Schedule, and there is no existing or its Subsidiaries’ current continuing default by any Acquired Company or, to the knowledge of Seller or former officersAFT, directors any other party in the performance or employees providing for the payment of any severance pay obligation under any such contract, agreement or payment upon commitment which could reasonably be expected to cause a Material Adverse Effect, and each Acquired Company is in compliance in all material respects with the occurrence provisions of a “change in control” each such contract, agreement or commitment. Seller and AFT have no knowledge of any anticipated breach or expectation or intention on the Company part of any party to not fully perform any obligation under any such contract, agreement or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetscommitment.
(bc) The Except as set forth on Section 4.16(c) of the Seller Disclosure Schedule, Seller and AFT have provided Purchaser with true and correct copies of all written contracts which are required to be listed or described on Schedule 4.15(adisclosed in Section 4.16(a) of the Company Seller Disclosure Schedule are referred to Schedule, in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) each case together with all amendments, modifications waivers or other changes thereto (all of which are disclosed in Section 4.16(a) of the Seller Disclosure Schedule). Section 4.16(c) of the Seller Disclosure Schedule also contains an accurate and assignments thereof. complete description of all material terms of any oral contracts referred to therein.
(d) Except as would not have, individually or set forth in the aggregate, a Company Material Adverse Effect, (iSection 4.16(d) each of the Contracts is in full force and effect and all payments and other amounts Seller Disclosure Schedule, Seller or AFT have no knowledge of any circumstances that may reasonably be expected to give rise to, any material contract otherwise required to be paid by Sellerdisclosed in Section 4.16(a) that relates to the Business of, the Company or any of its Subsidiariesthe assets owed or used by, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the ContractsAcquired Company.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Us 1 Industries Inc)
Contracts and Commitments. (a) Schedule 4.15 of Except as expressly contemplated by this Agreement or as set forth on the Company Disclosure Schedule contains attached CONTRACTS SCHEDULE, Seller is not a list (and. where party to or bound by any written or oral, a summary description) of:
(i) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees, former employees or consultants, or any other 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;
(ii) contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis or relating to loans to officers, directors or Affiliates;
(iii) contract under which Seller has advanced or loaned any other Person amounts in the aggregate exceeding $10,000;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any Purchased Asset or Assumed Liability;
(v) Guaranty, performance bond or similar agreement;
(vi) lease or agreement under which Seller 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 $10,000;
(vii) lease or agreement under which Seller is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by Seller;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $10,000;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights);
(x) warranty agreement with respect to its services rendered or its products sold or leased;
(xi) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xii) sales, distribution, supply or franchise agreement;
(xiii) agreement with a term of more than six months which is not terminable by Seller upon less than 30 days' notice without penalty and involves a consideration in excess of $10,000 annually;
(xiv) contract regarding voting, transfer or other arrangements related to Seller's capital stock or warrants, options or other rights to acquire any of Seller's capital stock;
(xv) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xvi) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $25,000 annually.
(b) All material of the contracts, commitments, agreements, leases, licensesagreements and instruments set forth or required to be set forth on the CONTRACTS SCHEDULE are valid, undertakings binding and other arrangements to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, enforceable in accordance with their respective businesses or assets, or the Shares, are bound or affected or which affect the terms and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby. Any Except as set forth on the CONTRACTS SCHEDULE, (i) Seller has performed all obligations required to be performed by it and is not in default under or in breach of nor in receipt of any claim of default or breach under any contract, commitmentlease, agreement or instrument to which Seller is subject; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by Seller under any contract, lease, agreement or instrument to which Seller is subject; (iii) Seller does not have any present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other material modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) none of the Seller Parties has knowledge of any breach or anticipated breach by the other parties to any contract, lease, agreement, leaseinstrument or commitment to which they are parties. Seller is not a party to any contract, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving commitment the Company or any performance of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of which could reasonably be expected to have a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsMaterial Adverse Effect.
(bc) The contracts required to be listed or described on Schedule 4.15(a) Buyer's counsel has been supplied with a true and correct copy of each of the Company Disclosure Schedule written instruments, plans, contracts and agreements and an accurate description of each of the oral arrangements, contracts and agreements which are referred to in this Agreement as on the “Contracts.” Seller has delivered or made available to Acquirer a trueattached CONTRACTS SCHEDULE, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and waivers or other changes thereto.
(d) Seller has either completed work assignments thereof. Except as would with System Owners within the time specified by System Owners or reached mutually satisfactory arrangements regarding work performance to specified time schedules without penalty to Seller.
(e) Seller is not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Sellerhave retainages withheld under existing contracts with System Owners other than that certain Agreement for Construction of Cable Television System dated as of January 1, the Company or any 1998, between Time Warner Entertainment - Advance/▇▇▇▇▇▇▇▇ Partnership and Communicor Corporation, for which Seller has posted a bond in lieu of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractsretainage.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 3.09 of the Company Disclosure Schedule contains Schedules, none of the Acquired Companies is a list (and. where oral, a summary description) ofparty to or bound by any executory:
(i) All material contractsbonus, commitmentspension, agreementsprofit sharing, leasesretirement or other form of deferred compensation plan or Contract;
(ii) Contract or indenture relating to Indebtedness or to mortgaging, licensespledging or otherwise placing a Lien (other than Permitted Liens) on any portion of the assets of the Acquired Companies;
(iii) guaranty of any obligation for Indebtedness or other guaranty involving more than $100,000;
(iv) lease or Contract under which it is lessee of, undertakings and or holds or operates any personal property owned by any other arrangements to party, for which the Company annual rental exceeds $100,000;
(v) lease or Contract under which it is lessor of or permits any third party to hold or operate any of its Subsidiaries is personal property, for which the annual rental exceeds $100,000;
(vi) other than in respect of blanket purchase orders that do not obligate the Company to purchase a partyminimum amount, Contract or group of related Contracts with the same party for the purchase by any Acquired Company of products or services which provided for annual payments in excess of $100,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet;
(vii) other than standard or blanket purchase orders with customers, contract or group of related contracts with a customer that provided for annual revenues (based on the trailing twelve-month period ending on the date of the Latest Balance Sheet) to the Acquired Companies in excess of $250,000;
(viii) Contract relating to any future disposition or acquisition of material stock, assets or properties by any Acquired Company, or by which the any merger or business combination with respect to or involving any Acquired Company (other than this Agreement);
(ix) Contract requiring any Acquired Company to purchase its total requirements of any product or any of its Subsidiariesservices from a third party or that contain “take or pay” provisions;
(x) broker, their respective businesses distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting or assets, advertising Contract involving more than $100,000 annually;
(xi) material license or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was Contract relating to (i) entered into outside the ordinary course use by any Acquired Company of business consistent with past practice, any third-party Intellectual Property or (ii) entered into the use of any Company Intellectual Property other than non-exclusive licenses granted to distributors in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000)business;
(iixii) Any Real Property Lease entered into by the Contract which limits or prohibits or purports to limit or prohibit any Acquired Company from competing or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete freely engaging in any line of business or with any Person or anywhere in the world or during any geographic location period of time or to use containing any exclusivity, most favored nations, non-solicitation or disclose any information in its possessionsimilar provisions;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licenseexiii) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with respect to any of the Company’s Subsidiaries set forth on Schedule 3.04 of the Disclosure Schedules, Contract that provides for any joint venture, partnership or similar arrangement by any Acquired Company;
(xiv) Contract between or among any Acquired Company on the one hand and any Affiliate of any Acquired Company (other than the Company or its Subsidiaries’ current or former officers, directors or employees providing for ) on the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andother hand;
(xxv) Any employment agreement under or contract with an independent contractor or consultant (or similar arrangement) to which an Acquired Company is a party and which is not cancellable without material penalty or without more than thirty (30) days notice;
(xvi) collective bargaining agreement or Contract with any Person has union, works council or labor organization; or
(xvii) any direct or indirect pecuniary interest in other Contract, the Company or any absence of its material assetswhich would cause a Material Adverse Effect.
(b) The contracts required to be listed Company either has supplied Purchaser with, or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer given Purchaser access to, a true, true and correct and complete copy of all written Contracts listed on Schedule 3.09 of the Disclosure Schedules (and where oralthe “Material Contracts”), a written summary description of such oral Contracts) together with all material amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company supplements thereto.
(c) With respect to each Material Adverse Effect, Contract: (i) each such contract is a valid and binding agreement of an Acquired Company, as applicable, enforceable in accordance with its terms, except as the Contracts is in full force enforcement thereof may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and effect and all payments general principles of equity affecting the availability of specific performance and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, equitable remedies; (ii) neither none of the Company nor any of its Subsidiaries Acquired Companies, as applicable, is in default of its obligations under material breach or default, nor has any of the Contracts, and no event, occurrence, condition or act Acquired Company taken any action which, with the giving of notice, the notice or lapse of time or the happening of any further condition could become both, would constitute a default by the Company material breach or its Subsidiaries default, or permit termination, modification or acceleration, as applicable, under any of the Contracts, such contract; and (iii) since to the Financial DateCompany’s knowledge, no waiver has been granted by Seller or by the Company to any other party is in material breach or default under any of the Contractssuch contract.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 Section 3.13 of the Company Disclosure Schedule contains sets forth a list (and. where oral, a summary description) of:
(i) All material contracts, commitments, of all of the following agreements, leases, licenses, undertakings contracts and other arrangements commitments to which the Company or any of its the Subsidiaries is a party, party or by which the Company, any of the Subsidiaries or their respective assets are bound (except for purchase orders for inventory by the Company or any of its the Subsidiaries in the ordinary course of business) (each such contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Disclosure Schedule, a “Material Contract”):
(a) employment agreements or severance agreements or employee termination arrangements or consulting agreements, in any such case, with respect to employees or consultants earning in excess of $50,000 per year;
(b) any change of control agreements with employees or consultants of the Company or the Subsidiaries earning in excess of $100,000 per year;
(c) agreements, contracts, commitments or arrangements containing any covenant limiting the ability of the Company or the Subsidiaries to engage in any line of business or to compete with any business or person;
(d) agreements or contracts (including loans or similar arrangements) with the Company or any affiliate of the Company (other than the Company and the Subsidiaries) or any past or present officer, their respective businesses director or assetsemployee of the Company or any of such affiliates (other than employment, severance and change of control agreements covered by clause (a) or (b) above);
(e) agreements or contracts under which the Company or the Subsidiaries has borrowed or loaned money, or the Sharesany note, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contractbond, commitmentindenture, agreementmortgage, lease, license, undertaking installment obligation or other arrangement shall be considered “material” evidence of indebtedness for purposes borrowed or loaned money or any guarantee of this Section 4.15(a)(isuch indebtedness, in each case, relating to amounts in excess of $100,000;
(f) if it is joint venture agreements or was other agreements involving the sharing of profits;
(g) leases pursuant to which (i) entered into outside material personal property or (ii) real property is leased to or from the Company or the Subsidiaries;
(h) powers of attorney from the Company or any Subsidiaries;
(i) guaranties, suretyships or other contingent agreements of the Company or the Subsidiaries involving underlying obligations of not less than $100,000;
(j) any agreement, contract, commitment or arrangement relating to capital expenditures with respect to the Company or the Subsidiaries and involving future payments which exceed $100,000 in any 12-month period;
(k) any agreement, contract, commitment or arrangement relating to the acquisition of assets (other than in the ordinary course of business consistent with past practice) or any capital stock of any business enterprise;
(l) license or royalty agreements involving any form of Intellectual Property, whether the Company is the licensor or licensee thereunder (excluding licenses that are commonly available on standard commercial terms, such as software “shrink-wrap” license);
(m) confidentiality and non-disclosure agreements (whether the Company is the beneficiary or the obligated party thereunder), other than those related to (i) commercial transactions in the ordinary course of business that are not individually material and (ii) the sale or disposition of the Company that do not adversely affect the transactions contemplated by this Agreement or any Ancillary Agreement or the operation of the Company by Parent after the Effective Time assuming that Parent operates the Surviving Corporation in a manner substantially similar to the manner in which the Company has been operated prior to the Effective Time;
(n) contracts or commitments relating to commission arrangements that are material to the Company or its business;
(o) indemnification agreements, other than in connection with commercial transactions in the ordinary course of business;
(p) any contract with any Governmental Authority;
(q) any other contract under which the consequences of a default or termination would reasonably be expected to have a Material Adverse Effect;
(r) contracts (other than those covered by clause (a) through (q) above) pursuant to which the Company and the Subsidiaries will receive or pay in excess of $100,000 over the life of the contract; and
(s) any other material agreements, contracts and commitments not entered into in the ordinary course of business consistent with past practice business. Complete and involves payments or receipts in excess accurate copies of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by all Material Contracts, including all amendments and supplements thereto, have been delivered to Parent. Each Company Material Contract is valid and binding on the Company or any of its Subsidiaries;
(iii) All employment agreementsand each Subsidiary party thereto and, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officersKnowledge, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiarieseach other party thereto, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required effect. With respect to be paid by Sellerthe Material Contracts, neither the Company, the Company Subsidiaries nor, to the Company’s Knowledge, any other party to any such contract has failed to perform any material obligation thereunder or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in material breach thereof or default of its obligations under any of thereunder, and, to the ContractsCompany’s Knowledge, and no event, occurrence, condition or act event has occurred which, with the giving of notice, notice or the lapse of time time, would constitute such a material breach or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractsdefault.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 Except as set forth on the Contracts Schedule, neither the Company nor any of its Subsidiaries is a party to any: (i) Contract involving a partnership, limited liability company, joint venture or similar Contract with another party; (ii) collective bargaining agreement or other Contract involving any labor agreement or collective bargaining agreement with any labor union, trade union, works counsel, or other employee representative body; (iii) Contract which contains a covenant that purports to restrict any business activity of the Company Disclosure or its Subsidiaries or limit the freedom of the Company or its Subsidiaries to engage in any line of business or engage in business in any geographical area or compete with any Person; (iv) Contract that provides the Company or any customer of the Company with pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to other customers, including any Contract containing “most favored nation” provisions; (v) Contract the performance of which extends beyond one (1) year or that involves the cash payment or potential cash payment by or to the Company of more than one hundred thousand dollars ($100,000) per year which cannot be terminated within thirty (30) days after giving notice of termination without resulting in any liabilities to the Company; (vi) Contract with any Governmental Body; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14 or any of the Employee Benefits Schedule contains relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract (excluding at-will offer letters that do not contemplate retention, severance, change in control payments, or other material benefits in the event of termination of such Person which are material to the Company and its Subsidiaries taken as a list whole and not otherwise set forth on the Contracts Schedule or Employee Benefits Schedule) for the employment or engagement of any officer, individual employee or other Person on a full-time or consulting basis that is not terminable at-will, provides for base compensation in excess of two hundred thousand dollars (and. where oral$200,000) per annum, or provides for retention, severance, change in control payments, or other material benefits in the event of termination of such Person other than as set forth in Section 5.14 or any of the Employee Benefits Schedule relating thereto; (x) Contract or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a summary descriptionLien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xi) guaranty of any obligation for borrowed money or other material guaranty; (xii) lease or 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 three hundred thousand dollars (i$300,000); (xiii) All material contractslease or Contract under which it is lessor of or permits any third-party to hold or operate any property, commitmentsreal or personal, agreementsfor which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) other than purchase orders entered into in the ordinary course of business, leases, licenses, undertakings Contract or group of related Contracts with any customer required to be listed on the Customers and other arrangements Suppliers Schedule; (xv) Contracts relating to which the licensing of Intellectual Property by the Company or any of its Subsidiaries is to a party, third-party or by which a third-party to the Company or any of its Subsidiaries, their respective businesses in each case other than (1) Contracts involving licenses of commercially available, off-the-shelf software having an annual value of less than $75,000, (2) Contracts primarily for the provision of services where the granting or assetsobtaining (or agreement to obtain) any right to use, or the Sharespermission or agreement to permit any other Person to use, are bound any Intellectual Property is ancillary or affected or which affect the consummation of incidental to the transactions contemplated hereby. Any contractin such Contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(iand (3) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into non-exclusive licenses granted in the ordinary course of business consistent with past practice and involves payments business; (xvi) other material Contract limiting or receipts otherwise adversely affecting the Company’s or any of its Subsidiaries’ ability to use or disclose any material Company Intellectual Property, in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease each case, other than Contracts entered into by the Company or any of its Subsidiaries;
Subsidiaries with customers in the ordinary course of business; (iiixvii) All employment agreementsContracts pursuant to which the Company has an obligation to indemnify, consulting agreements and executive compensation plans affecting defend or hold harmless any persons employed Person for claims or retained actions relating to the infringement, misappropriation or violation of any Intellectual Property, other than Contracts entered into by the Company or any of its Subsidiaries;
Subsidiaries in the ordinary course of business; and (ivxviii) Any agreement containing covenants limiting Contracts relating to the freedom acquisition or disposition (whether by merger, sale of the Company stock, sale of assets or otherwise) of any of its Subsidiaries to compete in any Person or material line of business entered into during the past three (3) years or in any geographic location the future acquisition or to use disposition (whether by merger, sale of stock, sale of assets or disclose any information in its possession;
(votherwise) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay Person or payment upon the occurrence material line of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsbusiness.
(b) The contracts As of the date hereof, each of the Contracts listed or required to be listed or described on the Contracts Schedule 4.15(a) is in full force and effect, and is a legal, valid and binding obligation of the Company Disclosure or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, except as may be limited by the Enforceability Exceptions. Except as set forth on the Contracts Schedule, as of the date hereof, neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Contract listed on the Contracts Schedule, and, to the knowledge of the Company, the other party to each of the Contracts listed on the Contracts Schedule are referred is not in material default thereunder. Except as set forth on the Contracts Schedule, as of the date hereof, no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or default on the part of the Company, or any Subsidiary of the Company or, to in this Agreement the knowledge of the Company, any other party under any Contract listed on the Contracts Schedule. To the knowledge of the Company, as of the “Contracts.” Seller date hereof, (i) no party to any Contract listed on the Contracts Schedule has delivered or exercised any termination rights with respect thereto, and (ii) no party has given written notice of any material dispute with respect to any Contract listed on the Contracts Schedule. The Company has made available to Acquirer a truethe Purchaser true and correct copies of each Contract listed on the Contracts Schedule, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractssupplements thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Whole Earth Brands, Inc.)
Contracts and Commitments. (a) Schedule 4.15 Except as filed as an exhibit to the Cohesion SEC Reports, Cohesion is not a party to or bound by any material oral or written contract, obligation or commitment in any of the Company Disclosure Schedule contains a list (and. where oral, a summary description) offollowing categories:
(i) All material contractsagreements or arrangements that contain severance pay, commitmentsunderstandings with respect to tax arrangements, agreements, leases, licenses, undertakings and other arrangements understandings with respect to which the Company or any of its Subsidiaries is a partyexpatriate benefits, or post-employment liabilities or obligations;
(ii) agreements or plans under which benefits will be increased or accelerated by which the Company or occurrence of any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contractby this Agreement, commitmentor under which the value of the benefits will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) agreements, agreement, lease, license, undertaking contracts or commitments currently in force relating to the disposition or acquisition of assets other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside than in the ordinary course of business, or relating to an ownership interest in any corporation, partnership, joint venture or other business consistent enterprise;
(iv) agreements, contracts or commitments for the purchase of materials, supplies or equipment which provide for purchase prices substantially greater than those presently prevailing for such materials, supplies or equipment, or which are with past practicesole or single source suppliers;
(v) guarantees or other agreements, contracts or commitments under which Cohesion is absolutely or contingently liable for (A) the performance of any other person, firm or corporation (other than Cohesion), or (iiB) entered into the whole or any part of the indebtedness or liabilities of any other Person (other than Cohesion);
(vi) powers of attorney authorizing the incurrence of a material obligation on the part of Cohesion;
(vii) agreements, contracts or commitments which limit or restrict (A) where Cohesion may conduct business, (B) the type or lines of business (current or future) in which they may engage, or (C) any acquisition of assets or stock (tangible or intangible) by Cohesion;
(viii) agreements, contracts or commitments containing any agreement with respect to a change of control of Cohesion;
(ix) agreements, contracts or commitments for the borrowing or lending of money, or the availability of credit (except credit extended by Cohesion to customers in the ordinary course of business and consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000as otherwise contemplated by this Agreement);
(iix) Any Real Property Lease entered into by any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the Company or any exchange of its Subsidiariescurrency;
(iiixi) All employment agreementsany joint marketing or joint development agreement, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any license or distribution agreement relating to any product of its Subsidiaries;Cohesion entered into other than in the ordinary course of business; or
(ivxii) Any any agreement containing covenants limiting the freedom not otherwise set forth on Schedule 3.15 and Schedule 3.18 of the Company Cohesion Disclosure Statement that expressly obligates Cohesion to indemnify any other Person, including but not limited to any employee or consultant of Cohesion, against any charge of its Subsidiaries to compete in infringement, misappropriation or misuse of any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) intellectual property, other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company indemnification provisions contained in purchase orders or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest customer agreements arising in the Company or any ordinary course of its material assetsbusiness.
(b) The contracts required Neither Cohesion nor to the knowledge of Cohesion, any other party to a Cohesion Contract (as hereinafter defined), has breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, nor does there exist any condition under which, with the passage of time or the giving of notice or both, could reasonably be listed expected to cause such a breach, violation or described on Schedule 4.15(a) default under, any material agreement, contract or commitment to which Cohesion is a party or by which it or any of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered its properties or made available to Acquirer a trueassets may be bound (any such agreement, correct and complete copy of all written Contracts (and where oralcontract or commitment, a written summary description of such oral Contracts) together with all amendments"COHESION CONTRACT"), modifications and assignments thereof. Except as would not haveother than any breaches, violations or defaults which, individually or in the aggregate, would not have a Company Cohesion Material Adverse Effect.
(c) Each Cohesion Contract is a valid, (i) each binding and enforceable obligation of Cohesion and to the knowledge of Cohesion, of the Contracts is other party or parties thereto, in accordance with its terms, and in full force and effect, except where the failure to be valid, binding, enforceable and in full force and effect would not reasonably be expected to have a Cohesion Material Adverse Effect and all payments to the extent enforcement may be limited by applicable bankruptcy, insolvency, moratorium or other laws affecting the enforcement of creditors' rights governing or by general principles of equity or by competition laws.
(d) An accurate and other amounts required to be paid by Seller, the Company or complete copy of each material Cohesion Contract and any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver amendment thereto has been granted by Seller or by the Company made available to any other party under any of the ContractsAngiotech.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Angiotech Pharmaceuticals Inc)
Contracts and Commitments. (a) Schedule 4.15 of Except as set forth on the Contracts Schedule, no Acquired Company Disclosure Schedule contains is a list (and. where oral, a summary description) of:
party to any: (i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, collective bargaining agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or ; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 4.14 or the Disclosure Schedules relating thereto; (iii) stock purchase, stock option or similar plan; (iv) contract for the employment of any officer, individual employee or other person on a full time or consulting basis providing for base compensation in excess of fifty thousand dollars ($50,000) per annum; (v) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of any Acquired Company; (vi) guaranty of any obligation for borrowed money or other material guaranty; (vii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds fifty thousand dollars ($50,000); (viii) lease or agreement 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 fifty thousand dollars ($50,000); (ix) other than purchase orders entered into in the ordinary course of business, purchase order, contract or group of related contracts with any supplier required to be listed on the Customers and Suppliers Schedule; (x) purchase orders, contract or group of related contracts with any customer required to be listed on the Customers and Suppliers Schedule; (xi) contract which prohibits any Acquired Company from freely engaging in business consistent with past practice and involves payments anywhere in the world; (xii) contracts relating to the licensing of material Intellectual Property by any Acquired Company to a third party or receipts by a third party to any Acquired Company, in each case, involving consideration in excess of Fifty Thousand Dollars fifty thousand dollars ($50,000);
) per annum (iixiii) Any Real Property Lease entered into by all other agreements affecting the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or Acquired Companies' ability to use or disclose any information Intellectual Property, in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) each case, other than (A) licenses for commercially available, off the use of off-the-shelf software programs;
used by the Acquired Companies or (viB) Any agreement involving agreements entered into by any Acquired Company with customers, distributors, suppliers and marketing partners in the Company ordinary course of business; and (xiv) contracts relating to the acquisition or any disposition (whether by merger, sale of its Subsidiaries for the development stock, sale of Software, including any components of Company Software
(viiassets or otherwise) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay Person or payment upon material line of business entered into during the occurrence past three (3) years or the future acquisition or disposition (whether by merger, sale of a “change in control” agreement stock, sale of the Company assets or any otherwise) of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any material line of its material assetsbusiness.
(b) The Each of the contracts listed or required to be listed or described on the Contracts Schedule 4.15(a) is in full force and effect, and is the legal, valid and binding obligation of the Acquired Company Disclosure which is party thereto, and, to the knowledge of the Companies, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors' rights or to general principles of equity. Except as set forth on the Contracts Schedule, no Acquired Company is in default, in any material respect, under any contract listed on the Contracts Schedule, and, to the knowledge of the Companies, the other party to each of the contracts listed on the Contracts Schedule are referred is not in default thereunder. Except as set forth on the Contracts Schedule, no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or default on the part of the Acquired Companies or, to in this Agreement as the “Contracts.” Seller knowledge of the Companies, any other party under any contract listed on the Contracts Schedule. No party to any contract listed on the Contracts Schedule has delivered or exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any contract listed on the Contracts Schedule. The Companies have made available to Acquirer a truethe Purchaser true and correct copies of each contract required to be listed on the Contracts Schedule, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractssupplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 4.15(a) of the Company Parent Disclosure Schedule, none of Parent, the Parent Subsidiaries nor any of the entities listed on Schedule 4.1(b) of the Parent Disclosure Schedule contains is a list (and. where oral, a summary description) ofparty to or bound by any of the following:
(i) All material contractsany Contract that provides for post-employment or post-consulting liabilities or obligations, commitmentsincluding severance pay;
(ii) any Contract under which payments or obligations will be increased, agreements, leases, licenses, undertakings and accelerated or vested by the occurrence (whether alone or in conjunction with any other arrangements to which the Company or event) of any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contractby this Agreement, commitmentincluding the Merger, agreementor under which the value of the payments or obligations will be calculated on the basis of any of the transactions contemplated by this Agreement, leaseincluding the Merger, licensewhether pursuant to a change in control or otherwise;
(iii) any Contract currently in force relating to the disposition or acquisition of assets where the fair market value of such assets exceeds $100,000, undertaking or in each case other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside than inventory sold in the ordinary course of business;
(iv) any Contract relating to an ownership interest in any corporation, partnership, joint venture or other business consistent with enterprise or Person, excluding wholly-owned Parent Subsidiaries;
(v) any Contract for the purchase of materials, supplies, equipment or services, under which the aggregate payments made to one party or group of related parties after during the past practicetwelve (12) months exceeded, or for the following twelve (ii12) entered into months is expected to exceed, $100,000;
(vi) any Contract relating to the guarantee (whether absolute or contingent) by Parent or any of the Parent Subsidiaries of (A) the performance of any other Person (other than Parent or a wholly-owned Parent Subsidiary) or (B) the whole or any part of the indebtedness or liabilities of any other Person (other than Parent or a wholly-owned Parent Subsidiary);
(vii) any Contract relating to the indemnification by Parent of its officers, directors, managers or agents;
(viii) any material Contract of indemnification or guaranty;
(ix) any power of attorney authorizing the incurrence of an obligation on the part of Parent or the Parent Subsidiaries;
(x) any Contract which limits or restricts (A) where Parent or any of the Parent Subsidiaries may conduct business, (B) the type or lines of business (current or future) in which Parent or any of the Parent Subsidiaries may engage or (C) any acquisition of assets or stock (tangible or intangible) by Parent or any of the Parent Subsidiaries;
(xi) 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, $100,000;
(xii) any Contract for the borrowing or lending of money, or the availability of credit (except credit extended by Parent or any of the Parent Subsidiaries to customers in the ordinary course of business and consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000practice);
(iixiii) Any Real Property Lease entered into by any Contract relating to any hedging, option (other than options granted to service providers in connection with the Company performance of services), derivative or other similar transaction and any foreign exchange position or contract for the exchange of its Subsidiariescurrency;
(iiixiv) All employment any collective bargaining agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(ivxv) Any agreement containing covenants limiting any Contract relating to the freedom employment of individuals who serve as officers of Parent or any Parent Subsidiary; or
(xvi) any Contract that would otherwise be required to be filed as an exhibit to a periodic report under the Exchange Act, as provided by Item 601 of Regulation S-K promulgated under the Exchange Act. Each Contract of the Company or any of its Subsidiaries to compete type described in any line of business or this Section 4.15(a) and in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (existence as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of date hereof is referred to herein as a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsParent Contract”.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct An accurate and complete copy of each Parent Contract (including all written Contracts amendments thereto) has been made available to the Company.
(and where oral, a written summary description of such oral Contractsc) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Neither Parent nor any of the Contracts Parent Subsidiaries, nor, to the knowledge of Parent, any other party to a Parent Contract, is in material breach, violation or default under, or has received written notice that it has breached, violated or defaulted under (nor, to the knowledge of Parent, does there exist any condition under which, with the passage of time or the giving of notice or both, would reasonably be expected to cause such a breach, violation or default under), any Parent Contract material to the operation of Parent’s business.
(d) Each Parent Contract is a valid, binding and enforceable obligation of Parent and any applicable Parent Subsidiary and, to the knowledge of Parent, of the other party or parties thereto, in accordance with its terms and is in full force and effect and all payments and effect, in each case except to the extent enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller laws affecting creditors’ rights generally or by the Company to any other party under any general equitable principles or by principles of the Contractsgood faith and fair dealing (regardless of whether enforcement is sought in equity or at law).
Appears in 1 contract
Sources: Merger Agreement (Stemcells Inc)
Contracts and Commitments. (a) Except as set forth on the attached Contracts Schedule 4.15 of the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” except for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease agreements entered into by the Company or any of its Subsidiaries;
Subsidiaries after the date hereof in accordance with Section 6.01, neither the Company nor any Subsidiary of the Company is party to any: (i) collective bargaining agreement or contract with any labor union; (ii) written bonus, pension, employee profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 4.13 or the Disclosure Schedules relating thereto; (iii) All stock purchase, stock option or similar plan; (iv) contract for the employment agreementsof any officer, individual employee or other Person on a full-time or consulting agreements basis providing for base salary compensation in excess of $250,000 per annum; (v) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any material portion of the assets of the Company and executive compensation plans affecting any persons employed or retained its Subsidiaries; (vi) outstanding guaranty by the Company or any Subsidiary of the Company for any obligation for borrowed money or other material guaranty, surety or indemnification (other than indemnification pursuant to contracts entered into in the ordinary course of business), whether direct or indirect; (vii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $500,000; (viii) lease or agreement 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 $500,000; (ix) contract or group of related contracts with the same party for the purchase of products or services which provided for annual payments (based on the trailing twelve month period ended July 31, 2010) by the Company or its Subsidiaries;
Subsidiaries in excess of $500,000; (ivx) Any agreements relating to any completed material business acquisition by the Company or any Subsidiary of the Company within the last two (2) years; (xi) contract or group of related contracts with a client or customer that provided annual net revenues (based on the trailing twelve month period ended July 31, 2010) to the Company and its Subsidiaries in excess of $1,000,000; (xii) material license or royalty agreement containing covenants limiting relating to the freedom use of any third party Intellectual Property (excluding all licenses for commercial off-the-shelf software); (xiii) contract which materially prohibits the Company or any of its Subsidiaries from freely engaging in business anywhere in the world (including contracts containing covenants not to compete in any line of business or with any Person in any geographic location geographical area); (xiv) any agreement relating to the provision of merchant processing or settlement services that involved consideration (based on the trailing twelve month period ended July 31, 2010) to use or disclose any information in its possession;
(v) Any license agreements involving from the Company or any of and its Subsidiaries in excess of $1,000,000; (as licensor or licenseexv) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any Card Association; (xvi) any voting or registration rights agreements with respect to the capital stock of the Company’s or Company and/or its Subsidiaries’ current ; (xvii) contract for the sale of any assets in excess of $100,000; (xviii) contracts to make advances or former officers, directors or employees loans to any other Person (other than advances of expenses in the ordinary course of business); (xix) contracts providing for the payment of any severance pay or payment upon the occurrence of a “employee severance, retention, change in control” control or other similar payments in excess of $10,000; or (xx) material contracts with independent contractors or consultants (or similar arrangements) involving annual payments in excess of $50,000 that are not cancelable without penalty or further payment and without more than thirty (30) days’ notice.
(b) Except as set forth on the Contracts Schedule, the Purchaser 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 the Contracts Schedule.
(c) Each contract listed on the Contracts Schedule (i) is in full force and effect, and (ii) is a legal, valid and binding agreement of the Company or any of its Subsidiaries, whether as applicable, enforceable against the Company or such payments are payable upon Subsidiary, as applicable, and, to the Company’s knowledge, enforceable against the other parties thereto, in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights or by principles of equity. Neither the Company nor any Subsidiary of the Company is in default in any material respect under (and no event has occurred that with notice or the lapse of time, or both, would constitute a termination that is voluntary breach or non-voluntary; and
(x) Any agreement under which default in any Person has any direct or indirect pecuniary interest in material respect by the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) Subsidiary of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral ContractsCompany) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of any contract listed on the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the ContractsSchedule.
Appears in 1 contract
Sources: Merger Agreement (Vantiv, Inc.)
Contracts and Commitments. (a) Schedule 4.15 Except as set forth on Section 4.10(a) of the Company DV Disclosure Schedule contains a list (and. where oralLetter, a summary description) ofno DV Entity is party to any:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000)CBA;
(ii) Any Real Property Lease entered into by 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 DV Entity has incurred or may incur Indebtedness exceeding the Company Threshold Amount for which any DV Entity will be liable following the Closing, or (B) relating to any Liens on assets of its Subsidiariesany DV Entity;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting guaranty of any persons employed Indebtedness or retained by the Company or any of its Subsidiariesother material guaranty;
(iv) Any Contract, lease or agreement containing covenants limiting under which it is lessee of, or holds, uses or operates any real or personal property or assets owned by any other party, for which the freedom 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, sale of equity, sale of assets or otherwise) of any Person or business or the equity or substantially all of the Company assets of any Person by any DV 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 DV Entity or, pursuant to which any DV 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 (including any agreement providing for joint development or marketing);
(A) Contract pursuant to which any DV 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 its Subsidiaries less than the Threshold Amount per year), (B) Contract pursuant to which a third party licenses, or is permitted to use or register, or granted any other rights under, any DV-Owned IP Rights (other than non-exclusive licenses granted by a DV Entity to customers in the Ordinary Course of Business), or (C) Contract affecting any DV Entity’s ability to use, enforce, or disclose any material Intellectual Property Rights, such as covenant-not-to-sue, coexistence, consent-to-use, concurrent use, or settlement agreements;
(ix) distribution, sales representative, marketing or similar Contract or agreement that required any DV 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;
(x) Contract or agreement pursuant to which any DV 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 DV Entity to compete in any line of business or with any product or with any Person or in any geographic location area or to use market or disclose during any information period of time or (b) contains covenants that restrict the business activity of any DV Entity in its possessionany material respect (other than non-disclosure agreements entered into in the Ordinary Course of Business);
(vxii) Any license agreements involving the Company Contract or agreement that contains “most-favored-nation” obligations or restrictions, or rights of first refusal or offer or any similar requirement or right, in each case binding any DV Entity in favor of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programsany third party;
(vixiii) Any Contract or agreement involving the Company where any DV Entity is subject to a requirement of exclusive dealing or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiariesexclusivity obligation;
(viiixiv) Any agreement of indemnification any interest, currency or guaranty involving the Company hedging derivatives or any of its Subsidiariessimilar Contracts;
(ixxv) Any Contract or agreement with that limits the incurrence of Indebtedness or the declaration or payment of any dividends or other distributions;
(xvi) Contract or agreement that involves payment to or by any DV Entity in excess of the Company’s Threshold Amount annually;
(xvii) Contract or its Subsidiaries’ current agreement whose termination (other than those termination by passage of time) would have a DV Material Adverse Effect;
(xviii) management agreement or former officersother Contract for the employment or engagement of any Service Provider on a full time, directors part time, consulting or employees providing 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 severance pay cash or other compensation or benefits upon or in connection with the consummation of the Transactions, (C) provides for the payment upon the occurrence of any cash or other compensation or benefits related to a “retention, severance, transaction-based or change in control” agreement control bonus or other similar Contract with any Service Provider or (D) restricts any DV Entity’s ability to terminate the employment or engagement of the Company any Service Provider at any time for any lawful reason or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary for no reason without penalty or non-voluntaryLiability; andor
(xxix) Any Contract or agreement under which that relates to the settlement of any Person has Action (A) with any direct Governmental Authority since the Look-back Date; (B) that materially restricts or indirect pecuniary interest in imposes obligations upon any DV Entity; or (C) requires payment by a DV Entity of more than the Company or any of its material assetsThreshold Amount after the date hereof.
(b) The contracts required to be listed or Each Contract described on Schedule 4.15(ain clauses (i) through (xix) of the Company Disclosure Schedule are referred Section 4.10(a) is a “Material Contract”. DV has provided to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, Goal true and correct and complete copy copies of all written Contracts (and where oralMaterial Contracts, a written summary description of such oral Contracts) together with all supplements, amendments, modifications waivers or other changes thereto.
(c) Neither any DV Entity nor, to DV’s Knowledge, any other party thereto is in material breach of, violation of or default under any Material Contract. No event has occurred that with notice or lapse of time or both would constitute a material breach of, violation of or default under, any Material Contract by any DV Entity, or, to DV’s Knowledge, any counterparty. All Material Contracts are valid and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments constitute legal, valid and binding obligations of the applicable DV Entity and, to DV’s Knowledge, each counterparty, and are enforceable against the applicable DV Entity and, to DV’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 amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractsequitable remedies.
Appears in 1 contract
Sources: Business Combination Agreement (Goal Acquisitions Corp.)
Contracts and Commitments. (a) Schedule 4.15 of Except as set forth on the Contracts Schedule, the Company Disclosure Schedule contains a list (and. where oral, a summary description) ofis not party to any:
(i) All material contractsLabor Agreement;
(ii) Contract for the employment or engagement of any individual on a full‑time, commitmentspart-time, agreementsconsulting or other basis;
(iii) Contract that is a settlement, leases, licenses, undertakings and other arrangements conciliation or similar agreement with any Governmental Authority or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(iv) Contract, instrument or indenture relating to the borrowing of money or incurrence or assumption of Indebtedness or to mortgaging, pledging or otherwise placing a Lien, except for Permitted Liens, on any portion of its Subsidiaries the assets of the Company;
(v) guaranty of any Indebtedness or other material guaranty of the obligations of any other Person;
(vi) lease or agreement under which it is a lessee of, or holds or operates, any personal property owned by any other party, for which the annual rental exceeds $[***];
(vii) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any personal property owned or used by the Company for which the annual rental exceeds $[***];
(viii) Lease listed or required to be listed on the Leased Real Property Schedule;
(ix) Contract for the purchase of products or services which provides for payments by the Company in excess of $[***] during the trailing twelve (12)‑month period ending on the date of the Latest Balance Sheet;
(x) agreements relating to any completed material business acquisition by the Company (A) within the last five (5) years or (B) pursuant to which the Company is subject to continuing obligations;
(xi) license or royalty agreement relating to the use of any third party Intellectual Property (other than non-exclusive licenses for unmodified, off-the-shelf software licensed for aggregate fees of its Subsidiaries, their respective businesses less than $[***]);
(xii) Contract (A) that is a license or assets, or royalty agreement relating to the Shares, are bound or affected or which affect use by a third party of Intellectual Property owned by the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or Company (other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside than non-exclusive licenses to customers granted in the ordinary course of business consistent business), (B) for the development of any Intellectual Property for or on behalf of the Company (other than work for hire or invention assignment agreements with past practice, employees or (ii) contractors entered into in the ordinary course of business consistent on standard forms of agreements) or by the Company for any Person, or (C) entered in connection with past practice and involves payments the resolution of any claim or receipts in excess of Fifty Thousand Dollars ($50,000)dispute related to Intellectual Property, such as consent-to-use, covenant-not-to-sue, coexistence, or concurrent use agreements;
(iixiii) Any Real Property Lease any Affiliate Agreement;
(xiv) any Contract granting to any Person a right of first refusal or option to purchase or acquire any assets of the Company;
(xv) contract (other than confidentiality agreements entered into by in the ordinary course) which places any material limitation on the Company from freely engaging in business anywhere in the world;
(xvi) any contract or agreement with a vendor or supplier listed on the Supplier Schedule;
(xvii) any Contract with a customer listed on the Customer Schedule;
(xviii) any Government Contract;
(xix) any Contract imposing "most favored nation" or similar pricing terms on the Company or which grants exclusive rights, rights of first refusal, rights of first negotiation, or similar rights to any of its Subsidiaries;Person; or
(iiixx) All employment agreementsany partnership, consulting agreements and executive compensation plans affecting any persons employed joint venture or retained by the Company similar Contract or any contract or Contract relating to ownership of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete investment in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsPerson.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a trueTrue, correct and complete copy copies of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of which are listed on the Contracts Schedule have been made available to Purchaser.
(c) Each Contract listed on the Contracts Schedule is valid, binding, enforceable and in full force and effect against the Company, and all payments to the Knowledge of Sellers, any other party thereto (in each case, subject to Enforcement Limitations), and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor nor, to the Knowledge of Sellers, any of its Subsidiaries other Person party to such Contract is in default of its obligations in any material respect under any such Contract, except as enforceability may be limited by Enforcement Limitations. During the past three (3) years, neither any Seller nor the Company has received written notice of any material default under any Contract listed on the ContractsContracts Schedule. Neither any Seller nor the Company has received any written notice of non-renewal or termination of any Contract listed on the Contracts Schedule. There does not exist under any Contract listed on the Contracts Schedule any material violation, and no eventbreach or event of default by the Company, occurrenceor, to the Knowledge of Sellers, any third party thereto, or, to the Knowledge of Sellers, event or condition that, after notice or act which, with the giving of notice, the lapse of time or both, would constitute a material violation, breach or event of default thereunder on the happening of any further condition could become a default by the Company or its Subsidiaries under any part of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the ContractsCompany.
Appears in 1 contract
Sources: Securities Purchase Agreement (Dyadic International Inc)
Contracts and Commitments. Except (x) as set forth on the attached Contracts Schedule and (y) for agreements entered into by the Company or its Subsidiaries after the date hereof in accordance with Section 6.01, neither the Company nor its Subsidiaries is party to any: (i) collective bargaining agreement; (ii) written bonus, pension, employee profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 4.12 or the Disclosure Schedules relating thereto pursuant to which the Company has obligations greater than $500,000 per annum; (iii) equity purchase, option or similar plan; (iv) contract for the employment of (a) Schedule 4.15 any officer, and (b) any individual employee or other person on a full-time or consulting basis providing for base salary compensation in excess of $500,000 per annum; (v) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien, except for Permitted Liens, on any material portion of the assets of the Company Disclosure Schedule contains a list and its Subsidiaries; (and. where oral, a summary descriptionvi) of:
guaranty of any obligation for borrowed money or other material guaranty; (ivii) All contract or group of related contracts with the same party for the purchase of products or services which provided for payments by the Company or its Subsidiaries in excess of $750,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet; (viii) agreements relating to any completed material contracts, commitments, agreements, leases, licenses, undertakings business acquisition by the Company or its Subsidiaries within the last two (2) years; (ix) contract (other than confidentiality and other arrangements to non-solicitation agreements entered into in the ordinary course) which places any material limitation on the Company or its Subsidiaries from freely engaging in business anywhere in the world; (x) any agreement that provides for or obligates the Company or any of its Subsidiaries is a partyto indemnify, hold harmless or by which defend any Person (including any officers, directors, members, managers, partners, employees or agents of the Company or any of its Subsidiaries), their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) than Contracts entered into in the ordinary course of business consistent the primary purpose of which is not related to the indemnification of any Person; (xi) any contracts or orders with past practice and involves any Governmental Entity for payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by to the Company or any Subsidiary in excess of its Subsidiaries;
$500,000 per annum; or (iiixii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership management agreement or similar agreement or arrangement involving the Company or any relating to management of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
Facilities (x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “ContractsExisting Management Agreements”).” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contracts.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on the attached Contracts Schedule 4.15 or, in the case of paragraph (iv), below, the Employees Schedule, neither the Company Disclosure Schedule contains nor any of its Subsidiaries is a list (and. where party to or bound by any written or oral, a summary description) of:
(i) All material contractsContract with any vendor involving annual consideration in the aggregate in excess of $50,000.
(ii) Contract with any customer involving annual consideration in the aggregate in excess of $50,000.
(iii) pension, commitmentsprofit sharing, stock option, employee stock purchase or other plan or arrangement providing for compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, leasesprograms, licensespolicies or arrangements;
(iv) contract relating to (A) loans to officers, undertakings directors or Affiliates (other than inter-company debt among the Company and a Subsidiary or between Subsidiaries of the Company), or (B) employment of (or consulting arrangement with) any executive officer, Headquarter Staff or any other arrangements employee or consultant earning more than $50,000 per year;
(v) contract under which the Company or any of its Subsidiaries has advanced or loaned any other Person amounts in the aggregate exceeding $25,000;
(vi) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien on any material asset or group of assets of the Company or any of its Subsidiaries;
(vii) Guaranty;
(viii) lease or agreement under which the Company or any of its Subsidiaries is a lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or by personal property under which the aggregate annual rental payments do not exceed $50,000 (it being agreed that any such lease disclosed on the Leased Real Property Schedule shall also be deemed disclosed herein);
(ix) lease or agreement under which the Company or any of its SubsidiariesSubsidiaries is lessor of or permits any third party to hold or operate any property, their respective businesses real or assetspersonal, owned or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into controlled by the Company or any of its Subsidiaries;
(iiix) All employment agreementscontract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $50,000;
(xi) assignment, consulting agreements and executive compensation plans affecting license, indemnification or agreement with respect to any persons employed intangible property (including any Intellectual Property Rights) granted or retained by made to the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of , or granted or made by the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or third parties, except licenses to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries of commercially available, unmodified, "off the shelf" software used solely for the Company's and its Subsidiaries' own internal use for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $50,000 annually;
(as licensor xii) sales, distribution, manufacturing, supply or licenseefranchise agreement (A) which involves consideration in the aggregate in excess of $50,000 annually (other than royalties from franchisees) or (B) other than licenses for the use franchise agreements, which involves any exclusivity, requirements clauses or similar right or obligation of off-the-shelf software programsany party thereto (including without limitation territorial exclusivity);
(vixiii) Any agreement involving with a term of more than six months which is not terminable by the Company or any of its Subsidiaries for the development upon less than thirty (30) days' notice without penalty and involves a consideration in excess of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries$50,000 annually;
(viiixiv) Any agreement of indemnification contract regarding voting, transfer or guaranty involving other arrangements related to the Company Company's or any of its Subsidiaries;
(ix) Any agreement with Subsidiary's Capital Stock or warrants, options or other rights to acquire any of the Company’s 's or its Subsidiaries’ current any Subsidiary's Capital Stock;
(xv) contract or former officers, directors agreement regarding any material indemnification provided to or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of by the Company or and any of if its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andincluding any contract regarding any indemnification provided with respect to Environmental and Safety Requirements;
(xxvi) Any other than franchise agreements, contract or agreement under which prohibiting it from freely engaging in any Person has any direct business or indirect pecuniary interest competing anywhere in the Company world; or
(xvii) any other agreement which is material to its operations and business prospects or any involves a consideration in excess of its material assets$50,000 annually. To the extent applicable, the contracts, leases, agreements and instruments identified on the Contracts Schedule are separately identified by type of agreement. The description of all contracts, leases, agreements and instruments identified on the Contracts Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) The contracts All of the contracts, leases, agreements and instruments set forth or required to be listed set forth on the Contracts Schedule are valid, binding and enforceable in accordance with their respective terms against the Company or described on Schedule 4.15(a) Subsidiary party thereto and, to the knowledge of the Company Disclosure Schedule are referred Company, the other parties thereto (except as enforceability may be limited by laws relating to in this Agreement as bankruptcy, insolvency, winding-up or other similar laws affecting the “Contracts.” Seller has delivered or made available to Acquirer a trueenforcement of creditors' rights, correct and complete copy by general principles of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereofequity). Except as would not have, individually or in set forth on the aggregate, a Company Material Adverse EffectContracts Schedule, (i) each of the Contracts is in full force Company and effect and its Subsidiaries has performed all payments and other amounts obligations required to be paid performed by Sellerit in all material respects and is not in material default under or in material breach of nor in receipt of any claim of default or breach under any contract, lease, agreement or instrument to which the Company or any of its Subsidiaries, which have become due, have been paid, Subsidiaries is subject; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a material default, material breach or event of material noncompliance by the Company or any of its Subsidiaries under any contract, lease, agreement or instrument to which the Company or any of its Subsidiaries is subject; (iii) neither the Company nor any of its Subsidiaries is has any present expectation or intention of not performing, in default all material respects, all such obligations; and (iv) the Company does not have knowledge of its obligations under any material breach or anticipated material breach by the other parties to any contract, lease, agreement, instrument or commitment to which they are parties. Except as set forth on the Contracts Schedule, there are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Contracts, agreements and no event, occurrence, condition instruments set forth or act which, with required to be set forth on the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company Contracts Schedule.
(c) Buyer or its Subsidiaries under any special counsel has been supplied with a true and correct copy of each of the Contractswritten instruments, plans, contracts and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any agreements and an accurate description of each of the Contractsoral arrangements, contracts and agreements which are referred to on the attached Contracts Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 Except with regard to any Contracts or other agreements set forth on the Contracts Schedule, neither the Company nor any of its Subsidiaries is a party to any of the following contracts, other agreements or arrangements: (i) collective bargaining agreement or contract with any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 4.11 or the Disclosure Schedules relating thereto; (iii) stock purchase, stock option or similar plan; (iv) contract for the employment of any officer, individual employee or other individual service provider on a full-time or consulting basis providing for base compensation in excess of $100,000 per annum; (v) Contract relating to Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company Disclosure Schedule or any of its Subsidiaries; (vi) guaranty of any obligation for borrowed money or other material guaranty; (vii) lease or agreement 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; (viii) lease or agreement 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; (ix) contract or group of related contracts with the same party for the purchase of products or services, other than purchase orders entered into in the ordinary course of business, under which the undelivered balance of such products and services has a selling price in excess of $100,000 which cannot be cancelled by the Company or any of its Subsidiaries without penalty or without more than 90 days’ notice; (x) Contracts that (A) provide for any minimum purchase or payment requirement or contain a “take or pay” provision or (B) contains a list “most-favored nation” or similar preferential pricing provision; (and. where oralxi) Contract with a Material Supplier; (xii) contract or group of related contracts with the same party for the sale of products or services, other than purchase orders entered into in the ordinary course of business, under which the undelivered balance of such products or services has a summary descriptionsales price in excess of $50,000 which cannot be cancelled by the Company or any of its Subsidiaries without penalty or without more than 90 days’ notice; (xiii) of:
Contracts relating to the acquisition, sale or disposition of all or material portion of any assets or business of any other Person (iwhether by merger, sale of stock, sale of assets or otherwise), whether or not consummated (including any confidentiality agreements entered into with respect thereto) All material contracts(A) within the last five (5) years or (B) that contain representations, commitmentswarranties, agreementscovenants, leasesindemnities or other obligations of the Company or any of its Subsidiaries that are still in effect, licensesincluding any outstanding “earn-outs”, undertakings and other arrangements contingent or deferred purchase price payments or similar contingent payment obligations; (xiv) contract which materially prohibits the Company or any of its Subsidiaries from freely engaging in business anywhere in the world; (xv) Contracts relating to any joint venture, partnership, strategic alliance or sharing of profits or losses with any Person, or any similar Contracts; (xvi) Contracts that are a settlement, conciliation or similar agreement with any Governmental Body or pursuant to which the Company or any of its Subsidiaries is a party, or will have any obligations after the date hereof; (xvii) contracts relating to the licensing of Intellectual Property by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business a third party or in any geographic location or by a third party to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses contracts for the use of generally commercially available off-the-shelf software programs;
or contracts for Inbound Licenses granted in the ordinary course of business), in each case involving consideration in excess of $50,000 per annum; and (vixviii) Any agreement involving all agreements between or among the Company or any Subsidiary, on the one hand, and Seller or any of its Subsidiaries for the development of Software, including any components of Company Software
Affiliates (vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving other than the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving Subsidiary), on the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsother hand.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer the Purchaser a true, correct and complete copy of all written each Contract listed on the Contracts Schedule (or a true and where oral, a written correct summary description of such the material terms of any oral Contracts) together with all amendments, modifications and assignments thereofContract listed on the Contracts Schedule). Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Each of the Contracts listed on the Contracts Schedule is valid and binding on the Company or its Subsidiary, is in full force and effect and all payments and other amounts required to be paid by Sellereffect, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries (as applicable) is in material default under any Contract listed on the Contracts Schedule, and, to the knowledge of Seller, the other party to each of the Contracts listed on the Contracts Schedule in not in material default thereunder. The Company and each of its Subsidiaries have performed all obligations required to be performed by it in all material respects under any the Contracts listed on the Contracts Schedule, except that the execution, delivery and performance of this Agreement by Seller and the consummation of the Contractstransactions contemplated hereby may conflict with, and no eventresult in a material breach of, occurrencerequire a notice under, condition constitute a material default under, result in a material violation of, give rise to a right of termination, modification, cancellation, or act which, with result in the giving loss of notice, the lapse of time a right or the happening of any further condition could become a default by the Company or its Subsidiaries benefit under any certain of the Contracts, and (iii) since Contracts listed on the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the ContractsContracts Schedule.
Appears in 1 contract
Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth on Schedule 4.15 of 4.13 attached hereto (the “Contracts Schedule”), the Company Disclosure Schedule contains is not a list (and. where party to or bound by, whether written or oral, a summary description) of:
any: (i) All material contractsbonus, commitmentspension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option, hospitalization insurance or similar plan or practice, whether formal or informal; (ii) Contract for the employment of any officer, individual employee or other person on a full-time or consulting basis, any severance agreement or any agreement requiring any payment upon a change of control of the Company; (iii) Contract or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of its assets; (iv) agreements with respect to the lending or investing of funds; (v) license or royalty agreements; (vi) guaranty of any obligation, leasesother than endorsements made for collection; (vii) lease or agreement under which it is lessee of, licensesor holds or operates, undertakings and any personal property owned by any other arrangements party calling for payments in excess of $2,000 annually; (viii) lease or agreement 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; (ix) Contract or group of related Contracts (not including utility service agreements) with the same party for the purchase or sale of supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year (except if such Contracts do not involve a sum in excess of $2,500 annually) or involves a sum in excess of $5,000; (x) Contract or group of related Contracts with the same party continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 days or less notice without penalties or involving more than $15,000; (xi) Contract with any officer, director, shareholder or other insider of the Company or any of its Subsidiaries is a partyaffiliates, or any family member or relative of Seller (or trust for the benefit of Seller or any of the foregoing), or with any entity controlled by or under common control of any such party (together, all such parties are “Related Parties”); (xii) Contract relating to the distribution, marketing or sales of its products, including the terms of sale used by Company in connection with confirmations of any purchase orders or shipments made to customers; (xiii) warranty agreement with respect to products sold; (xiv) Contracts pursuant to which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, subcontracts work to third parties; or (iixv) other Contract material to it whether or not entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsbusiness.
(b) The contracts Except as specifically contemplated by this Agreement or disclosed in the Contracts Schedule, (i) to the Company’s knowledge, no Contract or commitment required to be listed disclosed on the Contracts Schedule has been breached or described on Schedule 4.15(a) cancelled by the other party since the date of the Latest Balance Sheet; (ii) the Company Disclosure has performed all the obligations required to be performed in connection with the Contracts required to be disclosed on the Contracts Schedule are referred and is not in receipt of any claim of default under any contract or commitment required to in this Agreement as be disclosed on the “ContractsContracts Schedule, (iii) the Company does not have a present expectation or intention of not fully performing any obligation pursuant to any contract set forth on the Contracts Schedule and (iv) the Company has no knowledge of any breach or anticipated breach by any other party to any contract set forth on the Contracts Schedule.” Seller
(c) Prior to the date hereof, the Company has delivered or made available to Acquirer a true, Buyer true and correct and complete copy copies of all written Contracts (and where oralwhich are referred to on the Contracts Schedule, a written summary description of such oral Contracts) in each case together with all amendments, modifications amendments or other changes thereto. The Contracts Schedule contains an accurate and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each complete description of the all material terms of all oral Contracts is in full force and effect and all payments and other amounts required referred to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractstherein.
Appears in 1 contract
Sources: Purchase Agreement (Nutraceutical International Corp)
Contracts and Commitments. (a) Schedule 4.15 of Except as expressly contemplated by this Agreement or as set forth in SCHEDULE 3.11 hereto, the Company Disclosure Schedule contains is not a list (and. where party to or bound by any written or oral, a summary description) of:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking management agreement or other arrangement shall be considered “material” for purposes contract relating to the Company's management or operation of this Section 4.15(a)(i) if it is or was (i) entered into outside any property, other than agreements involving the ordinary course payment of business consistent with past practice, or (ii) entered into in less than $50,000 per year which are not otherwise material to the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000)Company's business;
(ii) Any Real Property Lease entered into by contract for the Company employment of any officer, individual employee or any other Person on a full-time, part-time, consulting or other basis or contract relating to loans to officers, directors or Affiliates of its Subsidiariesthe Company;
(iii) All employment 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 or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, consulting agreements and executive compensation plans affecting any persons employed programs, policies or retained by the Company or any of its Subsidiariesarrangements;
(iv) Any agreement containing covenants limiting the freedom of contract under which the Company has advanced or loaned to any of its Subsidiaries to compete other Person amounts in any line of business or in any geographic location or to use or disclose any information in its possessionthe aggregate exceeding $50,000;
(v) Any license agreements involving agreement or indenture relating to borrowed money or other indebtedness or the Company mortgaging, pledging or otherwise placing a Lien on any material asset or material group of its Subsidiaries (as licensor or licensee) other than licenses for assets of the use of off-the-shelf software programsCompany;
(vi) Any agreement involving the Company guarantee of any obligation, or power of attorney granted to any of its Subsidiaries for the development of Software, including any components of Company SoftwarePerson;
(vii) Any joint venture, joint development lease or partnership agreement or similar agreement or arrangement involving under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of its Subsidiariespersonal property under which the aggregate annual rental payments do not exceed $50,000;
(viii) Any lease or agreement of indemnification or guaranty involving under which the Company is lessor of or permits any of its Subsidiariesthird party to hold or operate any property, real or personal, owned or controlled by the Company;
(ix) Any agreement contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in excess of $50,000 during any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non12-voluntary; andmonth period;
(x) Any assignment, license, indemnification or agreement with respect to any intangible property;
(xi) agreement under which it has granted any Person has person any direct registration rights (including, without limitation, demand and piggyback registration rights);
(xii) contract or indirect pecuniary interest agreement prohibiting it from freely engaging in any business or competing anywhere in the Company or world; or
(xiii) any of other agreement which is material to its material assetsoperations and business as presently proposed to be conducted.
(b) All the contracts, agreements and instruments set forth in SCHEDULE 3.11 hereto are valid, binding and enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the rights of creditors generally and to general principles of equity (whether considered in a proceeding in equity or at law). The contracts required Company is not in default under any such contract, agreement or instrument, nor has the Company received any claim of default under any such contract, agreement or instrument, in each case which defaults could, in the aggregate, reasonably be expected to result in a Material Adverse Effect. No event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any such contract, agreement or instrument which defaults, breaches or events of noncompliance could, in the aggregate, reasonably be listed expected to result in a Material Adverse Effect. The Company has no present expectation or described on Schedule 4.15(aintention of not fully performing in all material respects all such obligations, and the Company does not have knowledge of any breach or anticipated breach by the other parties to any such contract, agreement, instrument or commitment which breaches could, in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(c) The Company has delivered to the Investor's counsel a true and correct copy of each of the Company Disclosure Schedule written instruments, plans, contracts and agreements and an accurate description of each of the oral arrangements, contracts and agreements which are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a trueSCHEDULE 3.11 hereto, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually waivers or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractschanges thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Dimeling Schreiber & Park)
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 of 3.09(a), neither the Company Disclosure Schedule contains a list (and. where oral, a summary description) ofnor any of its Subsidiaries is party to or bound by any written:
(i) All (A) collective bargaining agreement or contract with any trade union or other labor organization or (B) Contract with any current or former employee, director or independent contractor providing for future severance, change in control, retention, stay-pay or similar payments;
(ii) written bonus, pension, profit sharing, stock option, employee stock purchase, retirement or other form of deferred compensation plan, other than as described in Section 3.13(a) or the Disclosure Schedules relating thereto;
(A) Contract for the employment of any officer, individual employee or other person on a full-time, part-time or other basis providing for fixed compensation in excess of or equal to $125,000 per annum (other than standard offer letters for at-will employment) or relating to loans to officers, directors or Affiliates pursuant to which it has any material contractsobligation or (B) Contract with any independent contractor or consultant providing for fixed compensation in excess of or equal to $125,000 per annum;
(iv) (A) agreement or indenture relating to the borrowing of money or to mortgaging, commitmentspledging or otherwise placing a Lien on any material portion of their assets, agreementsor (B) Contract under which it has advanced or loaned any other Person, leasesthat is not an Affiliate of the Company, licensesamounts exceeding, undertakings and in the aggregate, $100,000;
(v) guaranty of any obligation for Indebtedness or other arrangements material guaranty;
(vi) settlement, conciliation or similar agreement with any Governmental Entity or pursuant to which the Company or its Subsidiaries will be required, after the date of this Agreement, to satisfy any monetary or material non-monetary obligations;
(vii) lease or agreement under which it is lessee or lessor of, or holds or operates any material personal property owned by any other party, or permits any third party to hold or operate any material personal property owned or controlled by it, in each case for which the annual rental exceeds $150,000;
(viii) Leased Real Property lease;
(ix) agreements relating to any completed material business acquisition by the Company or any of its Subsidiaries within the last three (3) years or pursuant to which the Company or any of its Subsidiaries is a party, has remaining obligations or by liabilities;
(x) Contract pursuant to which (A) the Company or any of its SubsidiariesSubsidiaries are licensed or otherwise permitted by a third party to use any Intellectual Property owned by such third party (other than non-exclusive licenses to the Company or any of its Subsidiaries of commercially available, their respective businesses or assetsunmodified "off the shelf" software where the aggregate fee, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking royalty or other arrangement shall be considered “material” consideration (including maintenance fees) for purposes any such software or group of this Section 4.15(a)(i) if it related software licenses is or was (i) entered into outside the ordinary course of business consistent with past practiceno more than $25,000 annually, or (iiB) entered into in the ordinary course of business consistent with past practice and involves payments any third party is licensed or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real otherwise permitted to use any Intellectual Property Lease entered into owned or held exclusively by the Company or any of its Subsidiaries;
(iiixi) All employment agreementsContract which limits or prohibits the Company or any of its Subsidiaries from competing or freely engaging in business anywhere in the world;
(A) joint venture, consulting agreements and executive compensation plans affecting partnership or similar agreement related to the creation or development of Intellectual Property by or for the Company or any persons employed of its Subsidiaries, or retained (B) Contract providing for the assignment, ownership, creation or development of any Intellectual Property;
(A) Contract that limits the freedom or right of the Company or any of its Subsidiaries to use Intellectual Property owned by the Company or any of its Subsidiaries, (B) any settlement contract, consent-to-use or settlement agreement relating to Intellectual Property, or (C) any Contract granting any exclusive rights to any third party with respect to the Intellectual Property owned by the Company or any of its Subsidiaries;
(ivxiv) Any agreement containing covenants limiting Contract which is not terminable by the freedom Company or applicable Subsidiary upon less than sixty (60) days' notice without penalty or additional liability and involves payments in excess of $250,000 annually;
(xv) any other Contract which involves a consideration in excess of $150,000 annually; or
(xvi) any other Contract that is outside the ordinary course of business which involves a consideration in excess of $10,000 executed within the thirty (30) days prior to the date hereof.
(b) The Company has delivered or made available to the Purchaser true and correct copies of all written Material Contracts and an accurate description of all oral arrangements or Material Contracts that are required to be set forth on Schedule 3.09(a), together with all material amendments, waivers or other changes thereto.
(c) Except as set forth on Schedule 3.09(c), (i) each of the Company and its Subsidiaries has performed in all material respects all material obligations required to be performed by it and is not in material default under, in material breach of, nor in receipt of any written Claim of material default or material breach under, any Material Contract; (ii) 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 by the Company or any of its Subsidiaries to compete in under any line of business or in any geographic location or to use or disclose any information in its possession;
Material Contract; and (viii) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officersdate hereof, directors or employees providing for to the payment of any severance pay or payment upon the occurrence of a “change in control” agreement knowledge of the Company there is no material breach or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary threatened material breach by (or non-voluntary; and
ordinary course notice of non-renewal or termination from (xother than any automatic non-renewals or terminations in accordance with such Material Contract's terms)) Any agreement under which the other parties to any Person has any direct Material Contract. Except for those that have terminated or indirect pecuniary interest expired in accordance with their terms, all of the Company Contracts and plans set forth on Schedule 3.09(a) or any of its material assets.
(b) The contracts required to be listed or described set forth on Schedule 4.15(a3.09(a) of (collectively, the Company Disclosure Schedule "Material Contracts") are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct valid and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments constitute legal, valid and other amounts required to be paid by Seller, binding obligations of the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contractssuch Subsidiary, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by are enforceable against the Company or its Subsidiaries under any such Subsidiary in accordance with their respective terms, and, to the Company's knowledge, constitute legal, valid and binding obligations of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any or parties thereto, enforceable against such party or parties 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 Contractsavailability of specific performance and other equitable remedies.
Appears in 1 contract
Sources: Membership Unit Purchase Agreement (U.S. Silica Holdings, Inc.)
Contracts and Commitments. (a) Schedule 4.15 of Except as set forth in the Company ISG Disclosure Schedule contains Schedule, ISG is not a list (and. where oral, a summary description) ofparty or subject to:
(i) All material contractsAny employment contract or arrangement, commitmentswritten or oral, agreementsproviding for future compensation with any officer, leasesconsultant, licensesdirector or employee which is not terminable by it on thirty (30) days' notice or less without penalty or obligation to make payments related to such termination, undertakings and other than (A) (in the case of employees other than executive officers) such severance agreements as are not different from standard arrangements offered to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into employees generally in the ordinary course of business consistent with ISG's past practice practices, a description of which is set forth in the ISG Disclosure Schedule and involves payments (B) such agreements as may be imposed or receipts in excess of Fifty Thousand Dollars ($50,000)implied by law;
(ii) Any Real Property Lease entered into plans, contracts or arrangements, written or oral, which collectively require aggregate payments by ISG in excess of $10,000 for bonuses, pensions, deferred compensation, severance pay or benefits, retirement payments, profit-sharing, or the Company or any of its Subsidiarieslike;
(iii) All employment agreementsAny joint marketing, consulting agreements and executive compensation plans affecting any persons employed joint development or retained by the Company joint venture contract or arrangement or any other agreement which has involved or is expected to involve a sharing of its Subsidiariesprofits with other persons;
(iv) Any existing OEM agreement, distribution agreement, volume purchase agreement, or other similar agreement in which the annual amount involved in 1999 exceeded, or is expected to exceed in 2000 or any subsequent year, $10,000 or pursuant to which ISG 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 ISG is required to make on an annual basis exceeds $10,000;
(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 Merger Agreement or any ISG Ancillary Agreement, the closing of the Merger, or the consummation of the transactions contemplated hereby or thereby;
(vii) Except for trade indebtedness incurred in the ordinary course of business, any instrument evidencing or related in any way to indebtedness in excess of $10,000 incurred in the acquisition of companies or other entities or indebtedness in excess of $10,000 for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, guarantee, indemnification or otherwise;
(viii) Any license agreement, either as licensor or licensee, except licenses granted to customers in the ordinary course of business;
(ix) Any contract containing covenants limiting the purporting to limit ISG's freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location area or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andthird party;
(x) Any agreement under agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $10,000; or
(xi) Any other agreement, contract or commitment which any Person has any direct or indirect pecuniary interest in the Company or any of its is material assetsto ISG's Business.
(b) The contracts required to be Each agreement, contract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license and commitment is listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregateISG Disclosure Schedule, a Company Material Adverse Effectand is valid and binding on ISG, (i) each of the Contracts and is in full force and effect effect, and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company ISG nor any of its Subsidiaries other party thereto, has breached any material provision of, or is in default under the terms of, any such agreement, contract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license or commitment.
(c) None of the 20 largest customers of ISG during the twelve month period ended February 29, 2000 (determined on the basis of both revenues and bookings during such period) has reduced or terminated, or has notified ISG in writing that it intends to reduce or terminate, the amount of its obligations under business with ISG.
(d) There is no agreement, judgment, injunction, order or decree binding upon ISG which has or could reasonably be expected to have the effect of prohibiting or impairing any material current business practice of the ContractsISG, and no event, occurrence, condition or act which, with the giving any acquisition of notice, the lapse of time material property by ISG or the happening conduct of any further condition could become a default business by the Company ISG as currently conducted or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted as proposed to be conducted by Seller or by the Company to any other party under any of the ContractsISG.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 of Except as expressly contemplated by this Agreement or as set forth on the attached "Contracts Schedule," the Company Disclosure Schedule contains is not a list (and. where party to or bound by any written or oral, a summary description) of:
(i) All material contractspension, commitmentsprofit 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 or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, leasesprograms, licenses, undertakings and other arrangements to which the Company policies or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000)arrangements;
(ii) Any Real Property Lease entered into by the Company contract with any Affiliate or any of its Subsidiariescurrent or former Insider;
(iii) All contract for the employment agreementsof any officer, individual employee or other Person on a full-time, part-time, consulting agreements and executive or other basis providing annual compensation plans affecting any persons employed in excess of $50,000 or retained by the Company contract relating to loans to officers, directors, Affiliates or any of its SubsidiariesInsiders;
(iv) Any agreement containing covenants limiting the freedom of contract under which the Company has advanced or loaned any other Person, other than trade credit extended in the Ordinary Course of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possessionBusiness;
(v) Any license agreements involving agreement or indenture relating to borrowed money or other Indebtedness or the Company mortgaging, pledging or otherwise placing a Lien on any asset or group of its Subsidiaries (as licensor or licensee) other than licenses for assets of the use of off-the-shelf software programsCompany;
(vi) Any agreement involving the Company or guaranty of any of its Subsidiaries for the development of Software, including any components of Company Softwareobligation;
(vii) Any joint venture, joint development lease or partnership agreement or similar agreement or arrangement involving under which the Company is the lessee of or holds or operates any of its Subsidiariesproperty, real or personal, owned by any other party, except for any lease or agreement for real or personal property under which the aggregate annual payments do not exceed $25,000;
(viii) Any Leased Real Property Subleases, lease or agreement of indemnification or guaranty involving under which the Company is the lessor of or permits any of its Subsidiariesthird party to hold or operate any property, real or personal, owned or controlled by the Company;
(ix) Any contract or group of related contracts (excluding purchase orders issued or received in the Ordinary Course of Business) with the same party or group of affiliated parties the performance of which involves consideration in excess of $25,000;
(x) assignment, license, indemnification, joint ownership or other agreement with respect to the intangible property (including, without limitation, any Purchased Proprietary Rights) owned and/or used by the Company or of any third party;
(xi) distribution vendor, dealership franchise, or service agreement or contract relating to the distribution, marketing or sale of its products or services;
(xii) agreement with a term of more than six months, which is not terminable by the Company upon less than 60 days notice without penalty or which involves more than $25,000 annually;
(xiii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world;
(xiv) warranty agreement with respect to products sold or services rendered;
(xv) agreements relating to ownership of or investments in any business or enterprise (including investments in joint ventures and minority equity investments);
(xvi) agreements containing "take or pay" provisions;
(xvii) agreements that contain return of products provisions or any other agreement that could result in an obligation to buy back products that were previously sold by the Company; or
(xviii) agreement relating to the subcontracting to another Person of any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for 's obligations under any agreement listed on the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsContracts Schedule.
(b) The contracts All of the contracts, agreements and instruments set forth on or required to be listed set forth on the Contracts Schedule are valid, binding and enforceable against the Company and, to the knowledge of the Company, the other parties thereto, in accordance with their respective terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or described other laws of general application affecting enforcement of creditors' rights and as limited by general principles of equity that restrict the availability of equitable remedies. The Company has performed all material obligations required to be performed by it and is not in material default under or in material breach of nor in receipt of any claim of default or breach under any such contract, agreement or instrument. 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 by the Company or, to the knowledge of the Company, any other party under any such contract, agreement or instrument. Except as set forth on Schedule 4.15(athe Contracts Schedule, with respect to each contract, agreement, or instrument required to be set forth on the Contracts Schedule: (x) the acquisition of substantially all of the assets of the Company Disclosure Schedule are referred to in as contemplated under this Agreement as the “Contracts.” Seller has delivered will not result in a breach of or made available default under any such contract, agreement, or instrument, or otherwise cause such contract, agreement, or instrument to Acquirer a truecease to be legal, correct valid, binding, enforceable and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, on identical terms following the Company or any of its Subsidiaries, which have become due, have been paid, Closing; (iiy) neither the Company nor any of its Subsidiaries is in default of its obligations under any Stockholder has received notice of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening intention of any further condition could become a default by party to such contract, agreement, or instrument to cancel, terminate or renegotiate any such contract, agreement or instrument; and (z) to the Company or its Subsidiaries under any knowledge of the ContractsCompany, and (iii) since the Financial Date, no waiver there has not been granted any breach or anticipated breach by Seller or by the Company to any other party under any to such contract, agreement or instrument.
(c) The Company has provided to the Purchaser a true and correct copy of all written contracts which are required to be disclosed on the ContractsContracts Schedule, in each case together with all amendments, waivers, or other changes thereto (all of which are disclosed on the Contracts Schedule). The Contracts Schedule contains an accurate and complete description of all material terms of all oral contracts referred to therein.
Appears in 1 contract
Sources: Asset Purchase Agreement (Otis Spunkmeyer Holdings Inc)
Contracts and Commitments. (a) Schedule 4.15 Except as set forth on the Contracts Schedule, neither the Company nor any of its Subsidiaries is a party to or bound by any: (i) collective bargaining agreement in respect of employees of the Company or its Subsidiaries; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14 or the Disclosure Schedules relating thereto; (iii) stock purchase, stock option or similar plan; (iv) contract for the employment of any individual on a full-time or consulting basis providing for base compensation in excess of two hundred thousand dollars ($200,000) per annum; (v) agreement or indenture relating to Indebtedness (excluding items in clauses (vii) and (viii) of Indebtedness) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (vi) guaranty of any obligation for Indebtedness (excluding items in clauses (vii) and(viii) of the definition of Indebtedness) or other material guaranty; (vii) lease or agreement under which it is lessee or sublessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds thirty thousand dollars ($30,000); (viii) lease or agreement under which it is lessor or sublessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds thirty thousand dollars ($30,000); (ix) other than purchase orders entered into in the ordinary course of business, any contracts with any supplier required to be listed on the Suppliers Schedule or any sole source supplier or any purchase, sale, or supply contract that contains a list volume requirements or commitments; (and. where oral, a summary descriptionx) of:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements contracts pursuant to which the Company or any of its Subsidiaries is grants to a third party, or by which a third party grants to the Company or any of its Subsidiaries, their respective businesses or assetsa license to any material Intellectual Property, or other than (A) contracts for the Shareslicense of commercially available, are bound or affected or which affect off the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(ishelf software ("Off-the-Shelf Software Licenses") if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (iiB) entered into contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xi) contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or material line of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into during the past five (5) years or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or material line of business; (xii) contracts with any Governmental Body or Related Party of the Company or the Seller, (xiii) contracts relating to settlement of any administrative or judicial proceedings since July 1, 2017, other than settlements involving monetary relief only of its Subsidiaries;
$50,000 or less or that have been fully paid, (iiixiv) All employment agreementspartnership or joint venture agreement with a third party, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any contract involving a sharing of its Subsidiaries;
revenues, profits, losses, costs or liabilities with any third party, (ivxv) Any agreement containing covenants limiting contracts that limit, or purport to limit, the freedom ability of the Company or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic location area or to use during any period of time, or disclose any information in its possession;
(v) Any license agreements involving that restrict the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement right of the Company and its Subsidiaries to sell to or purchase from any Person or to hire any Person, or that grant the other party or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company third person "most favored nation" status or any type of its material assetsspecial discount rights and (xvi) contracts with a Payor required to be listed on the Payors Schedule.
(b) The Each of the contracts listed or required to be listed or described on the Contracts Schedule 4.15(a) is in full force and effect, and is a legal, valid and binding obligation of the Company Disclosure or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors' rights or to general principles of equity. Except as set forth on the Contracts Schedule, neither the Company nor any Subsidiary of the Company (as applicable) is in material breach of or default under any contract listed on the Contracts Schedule, and, to the knowledge of the Company, the other party to each of the contracts listed on the Contracts Schedule are referred is not in material breach of or default thereunder. Except as set forth on the Contracts Schedule, no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or default on the part of the Company, or any Subsidiary of the Company or, to the knowledge of the Company, any other party under any contract listed on the Contracts Schedule. To the knowledge of the Company, no party to any contract listed on the Contracts Schedule has exercised any termination rights with respect thereto. No party to any contract listed on the Contracts Schedule has materially modified any contract listed on the Contracts Schedule, or has threatened in this Agreement as writing to terminate or materially modify any contract listed on the “Contracts.” Seller Contracts Schedule and no party has delivered or given written notice of any material dispute with respect to any contract listed on the Contracts Schedule. The Company has made available to Acquirer a truethe Purchaser true and correct copies of each contract listed on the Contracts Schedule, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractssupplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 Section 2.16 of the Company Disclosure Schedule contains lists the following agreements, whether oral or written, to which the Company is a list (and. where oral, a summary description) ofparty and which are currently in effect:
(i) All material contractsbonus, commitmentspension, agreementsprofit sharing, leasesretirement or other form of deferred compensation plan, licensesother than as described in Section 2.21 of the Disclosure Schedule (or excluded by Section 2.21 from inclusion thereunder);
(ii) hospitalization insurance or other welfare benefit plan or practice, undertakings and whether formal or informal, other arrangements than as described in Section 2.21 of the Disclosure Schedule (or excluded by Section 2.21 from inclusion thereunder);
(iii) stock purchase plan, stock option plan or other equity-based benefit plan;
(iv) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(v) confidentiality agreement;
(vi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(vii) guaranty by the Company, or by any Seller on behalf of the Company, of any obligation for borrowed money or otherwise;
(viii) lease or agreement under which the Company is lessee of, or holds or operates any of its Subsidiaries is a property, real or personal, owned by any other party, for which the annual rental exceeds $1,000, other than as described in Section 2.12 of the Disclosure Schedule;
(ix) lease or by agreement under which the Company or any of its Subsidiaries, their respective businesses or assetsis lessor of, or permits any third party to hold or operate, any property, real or personal, for which the Shares, are bound or affected or which affect the consummation annual rental exceeds $1,000 other than as described in Section 2.12 of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking Disclosure Schedule;
(x) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) than purchase orders entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000practices);
(iixi) Any Real Property Lease contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $1,000;
(xiii) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xiv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xv) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company or any in connection with the intellectual property rights listed in Section 2.17 of its Subsidiariesthe Disclosure Schedule;
(iiixvi) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed contract or retained by the Company or any commitment for capital expenditures in excess of its Subsidiaries$5,000;
(ivxvii) Any agreement containing covenants limiting for the freedom sale of any capital asset;
(xviii) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms); or
(xix) other agreement which is either material to the business of the Company or any of its Subsidiaries to compete the transactions contemplated hereby or which was not entered into in any line the ordinary course of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement consistent with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetspast practices.
(b) The contracts Company has performed all material obligations required to be listed performed by it in connection with the contracts or described on commitments required to be disclosed in the Disclosure Schedule 4.15(a) under the caption referencing this Section 2.16 and is not in receipt of any claim of default under any contract or commitment required to be disclosed under such caption; the Company Disclosure Schedule are referred has no present expectation or intention of not fully performing any material obligation pursuant to in any contract or commitment required to be disclosed under such caption; and the Sellers have no knowledge of any breach or anticipated breach by any other party to any contract or commitment required to be disclosed under such caption.
(c) Prior to the date of this Agreement as the “Contracts.” Seller has delivered or Agreement, Sellers have made available to Acquirer Buyer a true, true and correct and complete copy of all each written Contracts (contract or commitment, and where oral, a written summary description of such each oral Contracts) contract or commitment, referred to under the caption referencing this Section 2.16 in the Disclosure Schedule, together with all amendments, modifications and assignments thereof. Except as would not have, individually waivers or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractschanges thereto.
Appears in 1 contract
Contracts and Commitments. (i) Except as, expressly contemplated by this Agreement or as set forth on the attached “Contracts Schedule” or the attached “Employee Benefits Schedule,” the Company is not a party to any written or oral:
(a) Schedule 4.15 pension, profit sharing, stock option, warrant, stock purchase or other plan or arrangement providing for deferred or other compensation to directors, officers, employees or consultants or any other 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) contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis or contract relating to loans to officers, directors 6r Affiliates;
(c) contract under which the Company has advanced or loaned any other Person amounts in the aggregate exceeding $5,000;
(d) 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;
(e) guarantee of any obligation;
(f) lease or agreement under which the Company Disclosure Schedule contains a list 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 $5,000;
(and. where oralg) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, a summary descriptionreal or personal, owned or controlled by the Company;
(h) of:contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in excess of $10,000;
(i) assignment, license, indemnification or agreement with respect to any intangible property (including without limitation, any Intellectual Property Rights or confidential information);
(j) warranty agreement with respect to its services rendered or its products sold;
(k) agreement under which it has granted any Person any registration rights (including, without limitation, demand or piggyback registration rights);
(l) sales, distribution or franchise agreement;
(m) agreement with a term of more than six months which is not terminable by the Company upon less than 30 days’ notice without penalty;
(n) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world;
(o) joint venture, strategic alliance, collaboration or similar agreements; or
(p) any other agreement which is material to its operations and business prospects.
(ii) All material of the contracts, commitmentsagreements and instruments required to be set forth on the Contracts Schedule are valid, agreementsbinding and enforceable against the Company, leasesand to the Company’s knowledge against each other party thereto in accordance with their respective terms. The Company has performed all material obligations required to be performed by it under the contracts, licensesagreements and instruments required to be listed on the Contracts Schedule and is not in default under or in breach of nor in receipt of any claim of default or breach under any material contract, undertakings and other arrangements agreement or instrument to which the Company is subject; no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance under any of its Subsidiaries is a partycontract, agreement or by instrument to which the Company is subject; the Company has no present expectation or intention of not performing all such obligations in all material respects; and the Company has no knowledge of any of its Subsidiaries, their respective businesses breach or assets, anticipated breach by the other parties to any contract or the Shares, are bound or affected or commitment to which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;subject.
(iii) All employment agreementsUpon request, consulting agreements the Purchasers will have been supplied with a true and executive compensation plans affecting any persons employed or retained by the Company or any correct copy of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom each of the Company or any written contracts and an accurate written description of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any each of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments oral contracts which are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a trueContracts Schedule, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually waivers or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractschanges thereto.
Appears in 1 contract
Sources: Series C 2 Preferred Stock Purchase Agreement (Nanosphere Inc)
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 of the Company Disclosure Schedule contains a list 3.9(a) (and. where oral, a summary description) of:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company those Contracts set forth or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described set forth on Schedule 4.15(a3.9(a) of the Company Disclosure Schedule are referred to in this Agreement as collectively, the “Material Contracts.” Seller has delivered or made available ”), subject to Acquirer a trueSchedule 6.1(b), correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default party to any:
(i) collective bargaining agreement or other Contract with any labor union;
(ii) Contract for the employment of its obligations under any of the Contracts, and no event, occurrence, condition officer or act which, with the giving of notice, the lapse of individual employee on a full-time or the happening part-time basis providing for annual base salary in excess of any further condition could become a default $150,000 (other than employment Contracts terminable by the Company or its Subsidiaries under Subsidiary, as applicable, at will and without any of the Contracts, and obligation to pay severance or other post-termination consideration);
(iii) since Contracts with any Material Customer or Material Supplier, other than (x) purchase orders entered into in the Financial DateOrdinary Course of Business, no waiver has been granted (y) change orders (other than change orders that amend an existing Contract with a Material Customer or Material Supplier in a manner which is materially adverse to the Company or its Subsidiaries), or (z) agreements with respect solely to confidentiality of information;
(iv) Contract with any current or former (to the extent of any ongoing liability) director, officer, employee or other individual service provider providing for severance, retention or change in control payments or benefits;
(v) Contracts relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any material portion of their assets;
(vi) guaranty of any obligation for Indebtedness, borrowed money or other material guaranty;
(vii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $250,000;
(viii) Contract prohibiting or restricting the Company or its Subsidiaries from freely engaging in any business or competing anywhere in the world;
(ix) Contract relating to any obligation of the Company or any of its Subsidiaries with respect to the cleanup, abatement or other obligation or liability in connection with environmental liabilities;
(x) Contract with Seller or any Affiliate of Seller, other than Contracts solely by or among the Company and a Subsidiary;
(xi) Contract with any Governmental Authority;
(xii) agreements relating to any completed material business acquisition by the Company to any other party under or any of its Subsidiaries of another Person or the Contractsassets thereof; or
(xiii) material license agreement granting a third party a license under material Intellectual Property owned by the Company or any of its Subsidiaries, or otherwise relating to the use in the Business of any third party Intellectual Property.
(b) The Company has made available to the Purchaser a true and correct copy of all Contracts which are referred to or required to be referred to on Schedule 3.9(a).
(c) All Material Contracts constitute legal, valid and binding obligations of the Company or such Subsidiary, and are enforceable against the Company or such Subsidiary 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. Neither the Company nor any of its Subsidiaries is in material default or breach under, or in receipt of any written notice of any material default or breach under, any Material Contract.
Appears in 1 contract
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement or as set forth on the attached Contracts Schedule, neither the Company nor any Subsidiary is a party to or bound by any written or oral:
(a) Schedule 4.15 of the Company Disclosure Schedule contains a list (and. where oralpension, a summary description) of: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 or material arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ib) All material contractscontract for the employment of any officer, commitmentsindividual employee or other Person on a full-time, agreementspart-time, leasesconsulting or other basis providing annual compensation in excess of $120,000 or contract relating to loans to officers, licenses, undertakings and other arrangements to directors or Affiliates;
(c) contract under which the Company or any Subsidiary has advanced or loaned any other Person amounts in the aggregate exceeding $10,000 (excluding advances of work-related expenses to employees of the Company or its Subsidiaries is consistent with the Company's policies);
(d) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a party, Lien on any material asset or material group of assets of the Company and its Subsidiaries;
(e) guarantee of any obligation in excess of $10,000 (other than by the Company of a Wholly-Owned Subsidiary's debts or a guarantee by a Subsidiary of the Company's debts or another Subsidiary's debts);
(f) lease or agreement under which the Company or any Subsidiary is lessee of its Subsidiariesor holds or operates any property, their respective businesses real or assetspersonal, owned by any other party, except for any lease of real or personal property under which the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves aggregate annual rental payments or receipts in excess of Fifty Thousand Dollars (do not exceed $50,000)10,000;
(iig) Any Real Property Lease entered into lease or agreement under which the Company or any Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company or any of its SubsidiariesSubsidiary;
(iiih) All employment agreements, consulting agreements and executive compensation plans affecting contract or group of related contracts with the same party or group of affiliated parties the performance of which involves a consideration in excess of $2,500 in any persons employed month or retained by the Company or any an aggregate of its Subsidiaries$25,000;
(ivi) Any assignment, license, indemnification or agreement containing covenants limiting the freedom of the Company or with respect to any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possessionIntellectual Property Rights;
(vj) Any license agreements involving the Company warranty agreement with respect to its services rendered or any of its Subsidiaries products sold or leased (as licensor or licensee) other than licenses for standard warranties granted to customers in accordance with the use Company's or its Subsidiaries' standard service or sale contracts, the forms of off-the-shelf software programswhich warranties have been provided to Purchasers);
(vik) Any agreement involving the Company or under which it has granted any of its Subsidiaries for the development of SoftwarePerson any registration rights (including, including any components of Company Software
(vii) Any joint venturewithout limitation, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiariesdemand and piggyback registration rights);
(viii1) Any material sales distribution agreement of indemnification or guaranty involving the Company or any of its Subsidiariesfranchise agreement;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contracts.
Appears in 1 contract
Sources: Series D Convertible Preferred Stock and Warrant Purchase Agreement (Computer Motion Inc)
Contracts and Commitments. (aExcept as set forth on Schedule 4(n)(i) Schedule 4.15 attached hereto, no member of the Company Disclosure Schedule contains Group is a list party to or bound by (and. where oral, or has offered to any Person or otherwise resolved to become a summary descriptionparty to or bound by) ofany:
(i) All material contractsemployment, commitmentsseverance, agreementsengagement, leasesservice or other similar agreement or offer letter, licensesas applicable, undertakings and other arrangements to which the Company any current or any of its Subsidiaries is a partyformer employee, director, officer, consultant, independent director, or by which other service provider that provides for (A) the Company employment or engagement of any of its SubsidiariesPerson on a full-time, their respective businesses part-time, independent contractor or assetsconsulting basis with an annual base compensation that exceeds $100,000, (B) providing bonus, equity, severance benefits or change in control benefits, or the Shares, are bound retention or affected transaction bonuses or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking similar benefits or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i(C) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or relating to loans;
(ii) pension, profit sharing, retirement or other form of deferred compensation plan or arrangement;
(iii) agreement relating to any option, restricted stock, restricted stock unit, profits interests, stock appreciation, phantom stock or similar arrangement;
(iv) guarantee of any Liability or obligation;
(v) agreement under which it is 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 $50,000;
(vi) agreement under which it is a licensee of or is otherwise granted by a third party any rights to use any Intellectual Property (other than (A) non-exclusive end user licenses of commercially available Software used solely for the Company Group’s internal use and with a total replacement cost of less than $100,000 for its internal business purposes and (B) non-disclosure or confidentiality agreements entered into in the ordinary course of business consistent with past practice business, and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000backup licenses from contractors);
(iivii) Any Real agreement under which it is a licensor or otherwise grants to a third party any rights to use any Intellectual Property Lease entered into by (other than Intellectual Property licensed to customers on a non-exclusive basis in the Company or any ordinary course of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom business on one of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its SubsidiariesGroup’s form agreements);
(viii) Any joint development agreement, joint venture agreement, collaboration agreement, partnership agreement, strategic alliance agreement of indemnification or guaranty involving the Company or any of its Subsidiariessimilar agreement;
(ix) Any agreement with under which it is lessor of or permits any of the Company’s third party to hold or its Subsidiaries’ current operate any personal property owned or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andcontrolled by it;
(x) Any collective bargaining agreement under or other agreement with any labor union, works council or other labor organization;
(xi) settlement, conciliation or similar agreement with any Governmental Authority or pursuant to which any member of the Company Group will have any material outstanding monetary or other obligation after the date hereof;
(xii) agreement pursuant to which the Company Group is granted a lease in, a sublease in, or the right to use or occupy any land or building;
(xiii) Government Contract;
(xiv) agreement or group of related agreements with the same party that (A) is not a service contract or subcontract between any member of the Company Group and a service customer of the Company Group and (B) involves consideration in excess of $100,000;
(xv) agreement relating to the acquisition or disposition of assets (including Intellectual Property) or any interests in any business enterprise outside of the Company Group’s ordinary course of business and in an amount in excess of $100,000;
(xvi) agreement between any member of the Company Group, on the one hand, and any “app stores”, websites or other third Person has distribution platforms on or through which the Company Group, directly or indirectly, distributes or otherwise makes available any direct Company Products (collectively, the “Distribution Platforms”), together with the terms of service, policies and any other contract applicable to such Distribution Platforms;
(xvii) agreement relating to the sharing or indirect pecuniary interest allocation of Intellectual Property by and between the Company, on the one hand, and any Seller, on the other hand;
(xviii) agreement concerning confidentiality or non-competition or prohibiting any member of the Company Group or the Business from freely engaging in business or otherwise including provisions on joint price-fixing, market or customer sharing, “most-favored nations,” exclusivity or market classification;
(xix) agreement not executed in the Company ordinary course of business, not consistent with fair market terms, conditions and prices or any with Applicable Laws and regulations or otherwise not made on arm’s length terms and conditions;
(xx) agreement relating to the distribution, marketing or sales of its material assets.services;
(bxxi) The contracts agreement for the development of Intellectual Property for the benefit of the Company Group;
(xxii) agreement relating to the provision of co-location or software, data or infrastructure hosting services to the Company Group;
(xxiii) agreement with any customer listed on Schedule 4(s)(i)(A) or 4(s)(i)(B);
(A) agreement containing an agreement by any member of the Company Group to provide any Person with access to the source code for any Company Products or (B) any contract between any member of the Company Group and an escrow agent to provide for the source code for any Company Products to be put in escrow; or
(xxv) other agreement (or group of related agreements) material to the Company Group. Except as specifically disclosed on Schedule 4(n)(i), each member of the Company Group has performed in all material respects all obligations required to be listed performed by it and is not in material default under or described on Schedule 4.15(ain breach of nor in receipt of any claim of default or breach under any agreement to which it is a party, and no event has occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a default, breach or event of noncompliance under any agreement. To the Company’s Knowledge, the other party to each agreement has performed in all material respects all obligations required to be performed by it under such agreement. Each agreement (A) was awarded to and is held in the name of the applicable member of the Company Disclosure Schedule are referred Group and is legal, valid, binding and enforceable against such member of the Company Group and, to in the Knowledge of the Company, against any other party to such contract, agreement or arrangement, and (B) will continue to be legal, valid and enforceable on identical terms following the consummation of the transactions contemplated by this Agreement as the “Contracts.” Seller Agreement. Buyer has delivered or made available to Acquirer been supplied with a true, correct and complete copy of all written Contracts (and where oraleach of the contracts which are referred to on Schedule 4(n)(i), a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually waivers or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractschanges thereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Integral Ad Science Holding Corp.)
Contracts and Commitments. (a) Schedule 4.15 Section 3.5(a) of the Company Disclosure Schedule contains sets forth a complete list of each of the following Contracts as of the date hereof (and. where oralcollectively, a summary description) of:the "Material Contracts"): ------------------
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or CPD Contract creating any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or partnership;
(ii) entered into CPD Contract (including purchase orders, franchise agreements and undertakings or commitments to any governmental or regulatory authority) not made in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiariesbusiness;
(iii) All Contracts of employment agreementswith CPD Employees (including without limitation employment, change in control, golden parachute, severance or similar agreements or arrangements and other CPD Contracts with CPD Employees) and contracts for consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiariesservices;
(iv) Any agreement containing covenants limiting the freedom CPD Contracts consisting of the Company or any sales commitments for integrated circuit products in excess of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession$100,000;
(v) Any license agreements any other CPD Contract involving the Company payments by AMD in excess of $250,000 annually that are not cancelable on 30-days' notice by AMD, without payment of penalty or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programspremium;
(vi) Any agreement involving the Company CPD Contract relating to, or any of its Subsidiaries evidences of, or guarantees of, or providing security for, Indebtedness for the development of Software, including any components of Company SoftwareBorrowed Money;
(vii) Any joint venturematerial distribution, joint development or partnership agreement or similar agreement contract relating to or arrangement involving providing for the Company marketing and/or distribution of the products of the Business to which AMD is a party or any of its Subsidiariesby which AMD is bound;
(viii) Any agreement CPD Contract containing a covenant limiting the freedom of indemnification AMD to engage in the Business or guaranty involving the Company transactions contemplated by the Ancillary Agreements or to compete with any of its SubsidiariesPerson;
(ix) Any agreement with any Licenses by AMD of third-party Intellectual Property material to the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntaryBusiness; andor
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in other CPD Contract required by applicable law to be filed by AMD with the Company or any of its material assetsU.S. Securities and Exchange Commission.
(b) The contracts required to be listed or described All of the Material Contracts on Schedule 4.15(aSection 3.5(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is date hereof are in full force and effect and all payments constitute the legal, valid and other amounts required binding obligations of AMD and, to be paid by Sellerthe Knowledge of AMD, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contractsother parties thereto (except, in each case, as may be limited by bankruptcy, reorganization, insolvency and similar laws of general application relating to or affecting the enforcement of rights of creditors or the relief of debtors), and to the Knowledge of AMD, no condition exists or event, occurrence, condition act or act omission has occurred which, with the giving of or without notice, the or lapse of time or both, would constitute a default or a basis of force majeure or other claim of excusable delay or nonperformance thereunder. Except for the happening consents of parties listed on Section 3.5(b) of the Disclosure Schedule (the "Required Consents"), no ----------------- consent of any further condition could become a default party to the Material Contracts is required in connection with the transactions contemplated by this Agreement and the Company or its Subsidiaries under Reorganization Agreement. No other party to any Material Contract has notified AMD of the Contractsassertion of its right to renegotiate the terms or conditions of any Material Contract, and (iii) since and, to the Financial DateKnowledge of AMD, no waiver has been granted by Seller or by the Company to any other party under any of the Contractssuch basis exists.
Appears in 1 contract
Sources: Recapitalization Agreement (Advanced Micro Devices Inc)
Contracts and Commitments. Except as set forth in Schedule 3.13: (a) Schedule 4.15 a Seller is not a party to any contract, commitment or arrangement of the Company Disclosure Schedule contains a list (and. where oraltype described below which would be binding on Purchaser with respect to any employees of the Mounds Facility after the Closing Date, a summary description) ofor would otherwise be applicable to or binding upon Purchaser for any reason whether now or at any time after the Closing Date:
(i) All material contractsbonus, commitmentspension, agreementsprofit sharing, leasesretirement or deferred compensation plan or stock purchase, licensesstock option, undertakings and other arrangements to which the Company hospitalization insurance or any of its Subsidiaries is a partysimilar plan or practice, whether formal or informal, or by which the Company severance agreements or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or arrangements;
(ii) entered into contract with any labor union or contract for the employment of any officer, individual employee or other Person on a full-time, part-time or consulting basis;
(iii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the Purchased Assets;
(iv) guarantee of any obligation for borrowed money or otherwise, other than endorsements made for collection in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possessionbusiness;
(v) Any license agreements involving agreement or commitment with respect to the Company lending or any investing of its Subsidiaries (as licensor funds to or licensee) in other than licenses for the use of off-the-shelf software programspersons or entities;
(vi) Any agreement involving the Company license or any of its Subsidiaries for the development of Software, including any components of Company Softwareroyalty agreement;
(vii) Any joint venture, joint development lease or partnership agreement under which it is lessee of or similar agreement holds or arrangement involving operates any personal property owned by any other party for which the Company or aggregate annual rental payments to any one Person and its affiliates exceeds $25,000 (except to the extent any of its Subsidiariesthe foregoing constitutes a Contract Right to be assumed by Purchaser hereunder);
(viii) Any lease or agreement under which it is lessor of indemnification or guaranty involving permits any third party to hold or operate any property, real or personal, owned or controlled by it for which the Company or aggregate annual rental exceeds $25,000 (except to the extent any of its Subsidiariesthe foregoing constitutes a Contract Right to be assumed by Purchaser hereunder);
(ix) Any agreement contract or group of related contracts with the same party for the purchase or sale of products or services under which the undelivered balance of such products and services has a selling price in excess of $25,000 (except to the extent any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of foregoing constitutes a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andContract Right to be assumed by Purchaser hereunder);
(x) Any agreement under which any Person has any direct other contract or indirect pecuniary interest in group of related contracts with the Company same party continuing over a period of more than six months from the date or any of its material assets.
dates thereof, not terminable by it on thirty (b30) The contracts required days' or less notice without penalties or involving more than $25,000 (except to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under extent any of the Contracts, and no event, occurrence, condition or act which, with foregoing constitutes a Contract Right to be assumed by Purchaser hereunder);
(xi) contract which prohibits it from freely engaging in business anywhere in the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contracts.world;
Appears in 1 contract
Sources: Asset Purchase Agreement (Oil Dri Corporation of America)
Contracts and Commitments. (a) Except as set forth in Schedule 4.15 of 4.12 attached hereto (the “Contracts Schedule”), the Company Disclosure Schedule contains is not a list (and. where party to or bound by, whether written or oral, a summary description) of:
any: (i) All material contractscollective bargaining agreement or contract with any labor union or any bonus, commitmentspension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option, incentive, hospitalization insurance or similar plan or practice, whether formal or informal; (ii) contract for the employment or engagement of any officer, individual employee or other Person on a full time or consulting basis or any severance agreements, leasesretention agreements or similar agreements; (iii) agreement or indenture relating to the borrowing of money or to mortgaging, licensespledging or otherwise placing a lien on any of its assets; (iv) agreements with respect to the lending or investing of funds; (v) license, undertakings and sublicense or royalty agreements; (vi) lease or agreement under which it is lessee of, or holds or operates, any personal property owned by any other arrangements party calling for payments in excess of $25,000 annually; (vii) lease or agreement 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 or group of related contracts with the same party for the purchase or sale of supplies, products or other personal property or for the furnishing or receipt of services which involves a sum in excess of $25,000 annually; (ix) contract or group of related contracts with the same party continuing over a period of more than 6 months from the date or dates thereof, not terminable by it on 30 days’ or less notice without penalties or payments; (x) contract which prohibits it from freely engaging in business anywhere in the world; (xi) contract relating to the distribution or marketing of its products; or (xii) agreements, contracts or understandings pursuant to which the Company subcontracts work to third parties.
(b) Except as specifically disclosed in the Contracts Schedule, (i) the Company has no Knowledge of any cancellation, breach or anticipated breach by any other party to any contract or commitment required to be disclosed on the Contracts Schedule, (ii) the Company has performed all the obligations required to be performed in connection with the contracts or commitments required to be disclosed on the Contracts Schedule and is not in breach of its Subsidiaries is a partyand/or default under any contract or commitment required to be disclosed on the Contracts Schedule, (iii) the Company does not have any present expectation or by which intention of not fully performing any obligation pursuant to any contract or commitment required to be disclosed on the Contracts Schedule, (iv) no customer or supplier has indicated in writing or orally to any Seller or to the Company that it will stop or materially decrease the rate of business done with the Company or any of that it desires to renegotiate its Subsidiariescontract or commitment with the Company and (v) each contract or commitment required to be disclosed on the Contracts Schedule is legal, their respective businesses or assetsvalid, or the Sharesbinding, are bound or affected or which affect the enforceable and in full force and effect and, to Company’s Knowledge, will continue as such following consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(bc) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer Sellers have provided Buyer with a true, true and correct and complete copy of all written contracts which are required to be disclosed on the Contracts (and where oralSchedule, a written summary description of such oral Contracts) in each case together with all amendments, modifications and assignments thereof. Except as would not have, individually waivers or in the aggregate, a Company Material Adverse Effect, other changes thereto (i) each all of which are disclosed on the Contracts is in full force Schedule). The Contracts Schedule contains a description of all material terms of all oral contracts and effect and all payments and other amounts required commitments referred to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractstherein.
Appears in 1 contract
Sources: Stock Purchase Agreement (Commercial Vehicle Group, Inc.)
Contracts and Commitments. (a) Schedule 4.15 Section 5.8 of the Company Plan Investor Disclosure Schedule contains lists the following Contracts (including all amendments, modifications and supplements thereto) to which a list Plan Investor Group Member is a party as of the date hereof (and. where oraleach a “Plan Investor Material Contract” and collectively, a summary description) ofthe “Plan Investor Material Contracts”), in each case, other than Contracts expressly contemplated by this Agreement or the other Transaction Documents:
(i) All (A) any material contractsContract providing for the borrowing of money or to the issuance of any note, commitmentsbond, agreements, leases, licenses, undertakings and debenture or other arrangements to which the Company or any evidence of its Subsidiaries is a partyfunded indebtedness, or to mortgaging, pledging or otherwise placing a material Encumbrance on any securities or assets of any Plan Investor Group Member; (B) any Contract in the nature of a letter of credit, bankers’ acceptance and similar facilities involving any Plan Investor Group Member as an account party or beneficiary; (C) any Contract in the nature of a capital or direct financing lease that is required by which IFRS to be treated as a long-term liability involving annual payments above $250,000 individually; and (D) any Contract containing material earn-out obligations or other contingent payment or contingent obligations for the Company deferred purchase price of property or services;
(ii) any material Contract involving any guaranty by a third party of its Subsidiariesany obligation for borrowed money or other material guaranty, their respective businesses performance or assets, completion bond or the Shares, are bound indemnity or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, surety arrangement;
(iii) any license, undertaking sublicense, development, collaboration or royalty agreement or other arrangement shall be considered “material” for purposes Contract relating to the use by any Plan Investor Group Member of this Section 4.15(a)(iany material third-party Intellectual Property (other than commercially available software or software subject to click-through or shrink-wrap agreements);
(iv) if it is any license, sublicense, development, collaboration or was royalty agreement or other Contract relating to the use of any Intellectual Property of any Plan Investor Group Member by any third party (i) entered into outside other than licenses granted to customers, resellers and distributors in the ordinary course of business consistent business) pursuant to which any Plan Investor Group Member receives annual payments above $250,000 individually;
(v) any Contract binding any Plan Investor Group Member in respect of a covenant not to compete with past practiceany Person, or Contracts (ii) other than Distribution Agreements and Contracts entered into in the ordinary course of business consistent business) in which any Plan Investor Group Member grants any exclusivity or preferential right of first refusal or right of first offer to any Person or otherwise creates an exclusive relationship binding on any Plan Investor Group Member with past practice and involves payments a Person, in each case, to the extent such Contract materially restricts or receipts in excess limits the activities of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by any Plan Investor Group Member or the Company ability of any Plan Investor Group Member to engage or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location area or to use from developing or disclose commercializing any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programspharmaceutical products;
(vi) Any agreement involving any Contract for the Company acquisition or disposition of any business, any merger, consolidation, plan or scheme of arrangement or reorganization, or acquisition or disposition of a material amount of stock or material portion of assets of any Person outside the ordinary course of business, or any material real property (whether by merger, sale of its Subsidiaries for stock, sale of assets or otherwise) to the development extent any Plan Investor Group Member has any remaining payment or indemnity obligations thereunder in excess of Software$250,000 individually, including any components in each case other than sales of Company Softwareinventory in the ordinary course of business;
(vii) Any joint venture, joint development any Contract that by its terms limits the payment of dividends or partnership agreement or similar agreement or arrangement involving other distributions by the Company or any of its SubsidiariesPlan Investor;
(viii) Any agreement of indemnification or guaranty involving the Company any Contract, other than a Distribution Agreement or any employment agreements, involving consideration in excess of its Subsidiaries;$250,000 individually, and $500,000 in aggregate for Contracts with substantially the same customer, supplier or subject matter, and which, in each case, cannot be cancelled by the applicable Plan Investor Group Member (a) without penalty or (b) with less than ninety (90) days’ notice;
(ix) Any agreement Contracts with any of the Company’s independent contractors or its Subsidiariesconsultants which are not cancellable without material penalty or without more than ninety (90) days’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andnotice;
(x) Any agreement under which any Person has material Contract between any direct directors of any Plan Investor Group Member, any Senior Officers or indirect pecuniary interest (in both cases) any of their Affiliates, on the Company one hand, and such Plan Investor Group Member or any other Plan Investor Group Member, on the other hand;
(xi) any material Contract, involving consideration in excess of its $250,000 individually, and $500,000 in aggregate, that provides for any joint venture, partnership or similar arrangement or any Contract, involving consideration in excess of $250,000 individually, and $500,000 in aggregate, involving a sharing of revenues, profits, losses, costs or Liabilities between any Plan Investor Group Member, on the one hand, and any other Person, on the other hand excluding, in each case, (A) Distribution Agreements, (B) Contracts among Plan Investor Group Members which are directly or indirectly wholly owned by the Plan Investor and (C) any Contract that would be covered by this clause (x) solely by virtue of an obligation to pay customary royalties on account of product sales;
(xii) any “single source” supply Contract pursuant to which goods or materials that are material assetsto the Plan Investor Business are supplied to any Plan Investor Group Member from an exclusive source which source cannot be replaced without a material increase in cost within ninety (90) days of termination of such Contract; or
(xiii) any material Contract with any Governmental Entity outside of the ordinary course of business.
(b) The contracts required to be listed Company either has been supplied with, or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer been given access to, a true, correct and complete copy of all written Plan Investor Material Contracts (and where oral, or a written summary description of such all oral Plan Investor Material Contracts) together with all amendments, modifications and assignments thereof. Except as has not had and would not reasonably be expected to have a Plan Investor Material Adverse Effect and except as set forth in the Plan, each Plan Investor Material Contract (assuming due power and authority of, and due execution and delivery by, the other party or parties thereto) is in full force and effect and is valid, binding and enforceable against the applicable Plan Investor Group Member and, to the Plan Investor’s Knowledge, the other parties thereto, in accordance with their respective terms (except as may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting creditors rights).
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Plan Investor Material Adverse EffectEffect or except as set forth on Section 5.8 of the Plan Investor Disclosure Schedule, (i) each within the one-year period preceding the date of this Agreement, no Plan Investor Group Member has violated or breached, or committed any default in any respect under, any Plan Investor Material Contract that remains uncured as of the Contracts is in full force date hereof, and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither to the Company nor any of its Subsidiaries is in default of its obligations under any Plan Investor’s Knowledge, as of the Contractsdate of this Agreement, and no eventother Person has violated or breached, occurrenceor committed any default in any respect under, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any Plan Investor Material Contract that remains uncured as of the Contracts, date hereof; and (iii) since as of the Financial Datedate of this Agreement, no waiver event has been granted by Seller occurred and is continuing through any Plan Investor Group Member’s actions or by the Company to inactions, as applicable, that will result in a violation or breach in any other party under respect of any of the Contractsprovisions of any Plan Investor Material Contract.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 of Except as expressly contemplated by this Agreement or as set forth on the attached Contracts Schedule, neither the Company Disclosure Schedule contains nor any of its Subsidiaries is a list (and. where party to or bound by any written or oral, a summary description) of:
(i) All material contractspension, commitmentsprofit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, leasesprograms, licensespolicies or arrangements;
(ii) contract for the employment of any officer or other employee on a full-time, undertakings and part-time, consulting or other arrangements basis or contract relating to loans to officers, directors or Affiliates or contract or arrangement with any Affiliate;
(iii) contract under which the Company or any of its Subsidiaries is a party, has advanced or by which the Company or loaned any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into Person amounts in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars (aggregate exceeding $50,000);
(iiiv) Any Real Property Lease entered into by 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 of its Subsidiaries;
(iiiv) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its SubsidiariesGuaranty;
(ivvi) Any lease or agreement containing covenants limiting the freedom of under which the Company or any of its Subsidiaries to compete in is lessee of or holds or operates any line property, real or personal, owned by any other party, except for any lease of business real or in any geographic location or to use or disclose any information in its possessionpersonal property under which the aggregate annual rental payments do not exceed $50,000;
(vvii) Any license agreements involving lease or agreement under which the Company or any of its Subsidiaries (as licensor is lessor of or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company permits any third party to hold or operate any of its Subsidiaries for the development of Softwareproperty, including any components of Company Software
(vii) Any joint venturereal or personal, joint development owned or partnership agreement or similar agreement or arrangement involving controlled by the Company or any of its Subsidiaries;
(viii) Any agreement contract or group of related contracts with the same party or group of affiliated parties, the performance of which involves consideration in excess of $50,000 in the Company’s fiscal year ended September 30, 2003, or in the Company’s current fiscal year to date, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or guaranty involving agreement with respect to any intangible property (including any Intellectual Property Rights) which involves consideration in excess of $50,000 in the Company’s fiscal year ended September 30, 2003, or in the Company’s current fiscal year to date;
(x) agreement with a term of more than six months which is not terminable by the Company or any of its SubsidiariesSubsidiaries upon less than 30 days’ notice without penalty and which involves consideration in excess of $50,000 in the Company’s fiscal year ended September 30, 2003, or in the Company’s current fiscal year to date;
(ixxi) Any agreement with contract regarding voting, transfer or other arrangements related to the Company’s capital stock or warrants, options or other rights to acquire any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andcapital stock;
(xxii) Any contract or agreement under which prohibiting it from freely engaging in any Person has any direct business or indirect pecuniary interest competing anywhere in the Company world; or
(xiii) any other agreement which involves consideration in excess of $50,000 in the Company’s fiscal year ended September 30, 2003, or any of its material assetsin the Company’s current fiscal year to date.
(b) The contracts All of the contracts, leases, agreements and instruments set forth or required to be listed or described set forth on the Contracts Schedule 4.15(a(the “Material Contracts”) are valid, binding and enforceable against the Company and, to the Company’s Knowledge, against all other parties thereto in accordance with their respective terms and, to the Company’s Knowledge, shall be in full force and effect without penalty in accordance with their terms upon consummation of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereoftransactions contemplated hereby. Except as would not have, individually or in set forth on the aggregate, a Company Material Adverse EffectContracts Schedule, (i) each of the Contracts is in full force Company and effect and its Subsidiaries has performed all payments and other amounts material obligations required to be paid performed by Sellerit and is not in material default under or in breach of nor in receipt of any written claim of default or breach under any Material Contract; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company or any of its Subsidiaries, which have become due, have been paid, Subsidiaries under any Material Contract; (iiiii) neither the Company nor any of its Subsidiaries is in default has any present expectation or intention of its not fully performing all such obligations under any of Material Contracts; and (iv) the Contracts, and Company has no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening Knowledge of any further condition could become a default breach or anticipated breach by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company other parties to any other party under any of the ContractsMaterial Contract.
Appears in 1 contract
Sources: Merger Agreement (Epiq Systems Inc)
Contracts and Commitments. (a) Schedule 4.15 of the Company Disclosure Schedule contains NCI is not a list (and. where oral, a summary description) ofparty or subject to:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company 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 that 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 its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, employees other than executive officers) such severance agreements as are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into not different from standard arrangements offered to employees generally in the ordinary course of business consistent with NCI's past practice practices, a description of which is set forth in the NCI Disclosure Schedule and involves payments (B) such agreements as may be imposed or receipts in excess of Fifty Thousand Dollars ($50,000)implied by law;
(ii) Any Real Property Lease entered into plans, contracts or arrangements, written or oral, which collectively require aggregate payments by NCI in excess of $50,000 for bonuses, pensions, deferred compensation, severance pay or benefits, retirement payments, profit-sharing, or the Company or any of its Subsidiarieslike;
(iii) All employment agreementsAny joint marketing, consulting agreements and executive compensation plans affecting any persons employed joint development or retained by the Company joint venture contract or arrangement or any other agreement that has involved or is expected to involve a sharing of its Subsidiariesprofits with other persons;
(iv) Any existing OEM agreement, distribution agreement, volume purchase agreement, or other similar agreement pursuant to which NCI 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 NCI is required to make on an annual basis exceeds $100,000;
(vi) Any agreement, contract, mortgage, indenture, lease, instrument, license, franchise, permit, concession, arrangement, commitment or authorization that may be, by its terms, terminated or breached by reason of the execution of this Agreement, the Merger Certificate or any NCI Ancillary Agreement, the closing of the Merger, or the consummation of the transactions contemplated hereby or thereby;
(vii) Except for trade indebtedness incurred in the ordinary course of business, any instrument evidencing or related in any way to indebtedness in excess of $50,000 incurred in the acquisition of companies or other entities or indebtedness in excess of $50,000 for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, guarantee, indemnification or otherwise;
(viii) Any license agreement, either as licensor or licensee, excluding End-User Licenses;
(ix) Any contract containing covenants limiting the purporting to limit NCI's freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location area or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andthird party;
(x) Any agreement under agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $50,000; or
(xi) Any other agreement, contract or commitment which any Person has any direct or indirect pecuniary interest in the Company or any of its is material assetsto NCI.
(b) The contracts required to be Each agreement, contract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license and commitment listed or described on Schedule 4.15(a) of in the Company NCI Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct is valid and complete copy of all written Contracts (binding on NCI and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect effect, and all payments and neither NCI, nor to the knowledge of NCI any other amounts required to be paid by Sellerparty thereto, the Company has breached in any material respect any provision of, or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default in any material respect 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 NCI which has or could reasonably be expected to have the effect of its obligations under prohibiting or materially impairing any material current business practice of the ContractsNCI, and no event, occurrence, condition or act which, with the giving any acquisition of notice, the lapse of time material property by NCI or the happening conduct of any further condition could become a default business by the Company NCI as currently conducted or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company as proposed to any other party under any of the Contractsbe conducted.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth on the attached Contracts Schedule 4.15 of the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” except for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease agreements entered into by the Company or any of its Subsidiaries;
(iii) All employment agreementsSubsidiaries after the date hereof not in violation of Section 7.01, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is party to any: (b) collective bargaining agreement or contract with any labor union; (c) material written bonus, pension, employee profit sharing, retirement or other form of deferred compensation plan, other than as described in default the Employee Benefits Schedule relating thereto; (d) stock purchase, stock option or similar plan; (e) contract for the employment of its obligations under any officer, individual employee or other person on a full-time or consulting basis providing for base salary compensation in excess of $50,000 per annum; (f) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any material portion of the assets of the Company and its Subsidiaries; (g) guaranty of any obligation for borrowed money or other material guaranty; (h) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party; (i) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, other than Financing Contracts, and no event, occurrence, condition ; (j) contract or act which, group of related contracts with the giving same party for the purchase of notice, the lapse of time products or the happening of any further condition could become a default services which provide for annual payments by the Company or its Subsidiaries under any in excess of $100,000 during the trailing twelve-month period ending on the date of the Contracts, and Latest Balance Sheet; (iiik) since the Financial Date, no waiver has been granted by Seller or agreements relating to any material business acquisition by the Company to any other party under or any of its Subsidiaries pending or completed within the Contractslast two years; (l) contract or group of related contracts with a customer that provides annual net revenues (based on the trailing twelve-month period ending on the date of the Latest Balance Sheet) to the Company and its Subsidiaries in excess of $100,000; (m) material license or royalty agreement relating to the use of any third party intellectual property; or (xiii) contract which materially prohibits the Company or any of its Subsidiaries from freely engaging in business anywhere in the world.
(n) Except as set forth on the Contracts Schedule, Parent either has been supplied with, or has been given access to, in each case prior to the date of this Agreement, a true and correct copy of all written contracts which are referred to on the Contracts Schedule.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 4.10(a), in sections labeled and corresponding to the subparagraphs below, lists each of the following contracts (whether written or oral) of the Company Disclosure and its Subsidiaries (such contracts, together with the Company Real Property leases listed on Schedule contains a list (and. where oral4.08(b), a summary description) of:being “Material Contracts”):
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking each collective bargaining agreement or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent agreement with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000)any labor union;
(ii) Any Real Property Lease entered into by each contract or agreement for the employment or services of any officer or Employee of any of the Company and its Subsidiaries providing for severance, change of control or any of its Subsidiariesretention payments;
(iii) All employment agreementsexcept for contracts relating to trade receivables, consulting all contracts relating to indebtedness (including, without limitation, notes, debentures, guarantees, mortgages, loan agreements and executive compensation plans affecting any persons employed or retained by indentures), including contracts relating to the Company or any of its SubsidiariesCredit Facility;
(iv) Any each lease or agreement under which any of the Company and its Subsidiaries is lessee of, or holds or operates any tangible personal property owned by any other party, for which the annual rental payment exceeds $250,000 in any calendar year remaining under the term of such lease or agreement;
(v) each lease or agreement under which any of the Company and its Subsidiaries is lessor of or permits any third-party to hold or operate any tangible personal property owned by any of the Company and its Subsidiaries for which the annual rental exceeds $500,000 in any calendar year remaining under the term of such lease or agreement;
(vi) each contract or group of related contracts with the same party for the purchase or supply of products, inventory, supplies, equipment, machinery, services or other tangible personal property by or to the Company and its Subsidiaries, under which such products, inventory, supplies, equipment, machinery, services or other personal property has a selling price on an annual basis in excess of $500,000;
(vii) each contract containing covenants limiting the freedom of the any of the Company and its Subsidiaries to compete in any line of business;
(viii) each agreement pursuant to which (A) any of the Company and its Subsidiaries is granted the right to use Intellectual Property (excluding agreements for the use of commercially available software that is made available for an annual cost of less than $100,000) or (B) any of the Company and its Subsidiaries has granted the right to use Intellectual Property owned by the Company and its Subsidiaries to any other Person;
(ix) each joint venture, partnership, strategic alliance or similar agreement;
(x) each contract or purchase order (or series of related contracts or purchase orders) for capital expenditures or the acquisition or construction of fixed assets requiring the future payment by any of the Company and its Subsidiaries of an amount in excess of $250,000 annually;
(xi) each contract to acquire, directly or indirectly (by merger or otherwise), all or substantially all of the capital stock or other equity interests, assets, or rights of any other Person during the past five (5) years;
(xii) each contract or agreement for consulting or other similar type of contract or agreement providing for annual payments in excess of $100,000;
(xiii) each contract or agreement relating to the settlement of material litigation, administrative charge or investigation by any Governmental Authority entered into during the past three (3) years;
(xiv) each broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising contract;
(xv) each “take or pay” or “requirements” contract;
(xvi) each contract with any Governmental Authority;
(xvii) each contract that limits or purports to limit the ability of the Company or any of its Subsidiaries to compete in any line of business or with any Person or in any geographic location area or during any period of time, or that restricts or purports to use or disclose restrict any information in its possession;
(v) Any license agreements involving other Person from competing with the Company or any of its Subsidiaries (as licensor in any line of business or licensee) other than licenses for the use in any geographic area or during any period of off-the-shelf software programstime;
(vixviii) Any agreement involving any other contract that is material to the Company or any of its Subsidiaries for the development of Software, including any components of Company Softwareand not previously disclosed pursuant to this Section 4.10.
(viib) Any joint ventureBuyer has been provided with true and complete copies of all Material Contracts. Except as set forth on Schedule 4.10(b), joint development or partnership agreement or similar agreement or arrangement involving the Company or any of (i) each Material Contract is legal, valid, binding and enforceable in accordance with its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement terms with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of respect to the Company or any of its Subsidiaries, whether as applicable, and, to the Company’s knowledge, each other party to such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in contract, subject to the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paidEnforceability Exceptions, (ii) to the Company’s knowledge, neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge, any other party thereto, is in material breach, violation or default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, such contract and (iii) since the Financial Date, no waiver has been granted by Seller or by neither the Company to nor its Subsidiaries has provided or received written notice of any other party breach under any such contract or of the Contractscancellation or termination of any such contract.
(c) There are no outstanding powers of attorney executed on behalf of the Company or any of its Subsidiaries except as set forth on Schedule 4.10(c).
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 Section 3.11(a) of the Company Disclosure Schedule contains a list (and. where oral, a summary descriptionby reference to the applicable subsection hereof) of:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements lists all of the following Contracts to which the Company or any of its the Company Subsidiaries is a partyparty and which are currently in effect:
(i) Any pension, retirement or by deferred compensation plan or contract or other bonus plan, other than as described in Section 3.14 of the Company Disclosure Schedule;
(ii) Any collective bargaining agreement or contract with any labor union;
(iii) Any employment agreement for the employment of any officer;
(iv) Any loan agreement or indenture with any third party relating to Indebtedness for borrowed money under which the Company or any of its Subsidiariesthe Company Subsidiaries has borrowed money, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts each case relating to amounts in excess of Fifty Thousand Dollars ($50,000)500,000 outstanding;
(iiv) Any Real Property Lease entered into Contract with any third party under which the Company or any of the Company Subsidiaries is lessee of any personal property owned by any third party for which the annual rental payments paid by the Company or any of its Subsidiaries;
the Company Subsidiaries exceeds $350,000 and which is not terminable on ninety (iii90) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed days’ or retained fewer days’ notice by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or Subsidiaries without liability for any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programsmaterial penalty;
(vi) Any agreement involving Contract under which the Company or any of its the Company Subsidiaries is lessor of any personal property owned by the Company or any of the Company Subsidiaries for which the development annual rental payments paid to the Company or any of Software, including the Company Subsidiaries exceeds $500,000 and which is not terminable on ninety (90) days’ or fewer days’ notice by the Company or any components of the Company SoftwareSubsidiaries without liability for any material penalty;
(vii) Any joint venture, joint development Contract (other than those covered by clauses (i) through (vi) above and other than the Real Property Leases) with any third party involving annual payments to or partnership agreement or similar agreement or arrangement involving by the Company or any of its Subsidiariesthe Company Subsidiaries of more than $500,000 with respect to any such Contract;
(viii) Any agreement Contract with respect to a partnership or joint venture or sharing of indemnification or guaranty involving the Company or any of its Subsidiariesprofits;
(ix) Any agreement group purchasing organization Contract;
(x) Any Contract granting any Person a Lien on all or any part of the material assets of the Company and the Company Subsidiaries, taken as a whole, other than Liens that will be released at or prior to the Closing;
(xi) Any Contract relating to the acquisition or disposition of any real property since January 1, 2011;
(xii) Any Contract that provides for indemnification of a third-party by the Company or any Company Subsidiary, other than in the ordinary course of business;
(xiii) Any Contract with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of third party containing covenants prohibiting the Company or any of its Subsidiaries, whether the Company Subsidiaries in any material respect from competing in any line of business against any such payments are payable upon a termination that is voluntary third party (other than through confidentiality provisions or agreements and non-voluntarysolicitation of employee provisions or agreements); and
(xxiv) Any agreement under which any Person has any direct Contract relating to the voting or indirect pecuniary interest in control of the capital stock of the Company or any the election of its material assetsdirectors of the Company.
(b) The contracts required With respect to be listed or described each of the Contracts set forth on Schedule 4.15(aSection 3.11(a) of the Company Disclosure Schedule are referred to in this Agreement (each a “Material Contract”), except as set forth on Section 3.11(b) of the “Contracts.” Seller Company Disclosure Schedule, (i) the Company has delivered or made available to Acquirer Parent and Merger Sub a true, correct and complete copy of all written Contracts such Material Contract (and where oral, a written summary description of such oral Contracts) together with including all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid), (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under Company, or any of the ContractsCompany Subsidiaries nor, and no eventto the Company’s knowledge, occurrenceany other party thereto, condition is in material breach of such Material Contract or act whichdefault under any such Material Contract, with the giving of notice, the lapse of time or the happening of any further condition could become a default by (iii) the Company or the Company Subsidiaries have performed, in all material respects, all material obligations required to by performed by such Persons in connection with the Material Contracts and (iv) each such Material Contract is valid and in full force and effect in all material respects and constitutes a legal, valid and binding obligation of the Company or such Company Subsidiary and, to the Company’s knowledge, the other parties thereto, and is enforceable against the Company or the Company Subsidiaries in accordance with its Subsidiaries under terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Since January 1, 2011, none of the Company or any Company Subsidiary has received a notice of termination or nonrenewal with respect to any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Material Contracts.
Appears in 1 contract
Sources: Merger Agreement (Brady Corp)
Contracts and Commitments. (a) Schedule 4.15 Section 3.12(a) of the Company Disclosure Schedule contains Schedules sets forth a true, complete and correct list of the following Contracts in effect as of the date hereof to which any member of the Company Group is a party or is bound (and. where oralexcluding any Company Plan) (collectively, a summary descriptionwhether set forth or required to be set forth on Section 3.12(a) of:of the Company Disclosure Schedules, the “Material Contracts”):
(i) All any Contract or indenture relating to (A) Indebtedness, (B) to mortgaging, pledging or otherwise placing any Lien (other than Permitted Liens) on any assets of the Company Group, (C) the making of any loan or investment, (D) any guaranty of any obligation for borrowed money or (E) any other guaranty; provided, however, that, the foregoing shall not require the scheduling of any confidentiality agreements entered into in connection with any such Contract or indenture;
(ii) any Contract under which it is (i) lessee, or holds or operates any personal property owned by any other party, for which the annual rental payments exceed $[*] or (ii) lessor of or permits any third party to hold or operate any personal property for which the annual rental payments exceed $[*];
(iii) any Government Contract under which any member of the Company Group has made or received annual payments in excess of $[*] for the past [*];
(iv) any Contract or group of related Contracts (provided that this clause (iv) shall not require the scheduling of any purchase order, other than open purchase orders that provide for payments in excess of $[*]) with the same party for the purchase or sale of products or services that provide for annual payments by or to the Company Group in excess of $[*] during any twelve month period;
(A) any Contract relating to any merger, consolidation, business combination, acquisition or disposition (including any acquisition or disposition of a material contractsamount of stock or assets of any Person or any real property) by any member of the Company Group under which any material continuing obligations (other than confidentiality obligations) remain outstanding or (B) any partnership, commitmentsjoint venture, agreementsstrategic alliance, leases, licenses, undertakings and exclusive collaboration or exclusive development (including exclusive joint development with the Company Group) agreement or similar arrangement relating to the Company Group;
(vi) all Contracts involving a settlement or compromise of any Action to which any member of the Company Group or any of their respective directors or officers (in their capacity as such) is a party (except to the extent disclosed under clause (viii) below) (A) that has been entered into in the last [*] years that has any material continuing obligations (other arrangements to than confidentiality obligations) on the part of the Company or its Subsidiary in excess of $[*] or (B) under which the Company or any of its Subsidiaries is a party, or by required to comply with any material covenants (other than confidentiality obligations) after the date hereof;
(vii) any Contract pursuant to which any member of the Company or Group (A) is granted any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking license or other arrangement shall right or immunity (including any sublicense, option, right of first refusal or other preferential right or covenant not to be considered “material” for purposes of this Section 4.15(a)(isued) if it is under any material Intellectual Property, other than any material transfer agreements, clinical trial agreements, nondisclosure agreements, services agreements, commercially available Software-as-a-Service offerings, off-the-shelf software licenses or was (i) similar generally available licenses entered into outside in the ordinary course Ordinary Course of business consistent with past practice, Business or (iiB) grants any license or other right or immunity (including any sublicense, option, right of first refusal or other preferential right or covenant not to sue) under any material Intellectual Property, other than any material transfer agreements, clinical trial agreements, nondisclosure agreements, services agreements or non-exclusive outbound licenses entered into in the Ordinary Course of Business that are incidental and not material to performance under the applicable agreements;
(viii) any Contract relating to the ownership or development of any material Company Owned IP (excluding intellectual property assignment agreements entered into with employees and independent contractors in the Ordinary Course of Business and material transfer agreements, clinical trial agreements or services agreements);
(ix) other than purchase or sale orders placed by the Company Group in the Ordinary Course of Business, any Contract (or group of related Contracts) for the purchase or sale of inventory, goods, products, equipment or other personal property, in each case, for annual payments by or to the Company Group of $[*] or more, in each case, other than confidentiality agreements entered into in the ordinary course of business;
(x) any Contract including covenants by any member of the Company Group that purport to restrict the ability of the Company Group from competing or conducting business consistent in any territory;
(xi) any labor agreement, collective bargaining agreement or any other agreements or arrangements with past practice and involves payments any labor union, labor organization, or receipts in excess of Fifty Thousand Dollars works council ($50,000each, a “CBA”);
(iixii) Any Real Property Lease any Affiliate Contract;
(xiii) any Contract (provided that this clause (xiii) shall not require the scheduling of any purchase order) that involves or is related to (A) a grant of any right of first offer or right of first refusal relating to any material assets of the Company or its Subsidiaries, (B) any supplier or vendor to the Company Group of products or services that cannot be obtained from another source for a substantially similar cost with substantially similar quality or quantity, (C) obligations to purchase total requirements of any products or service from any other Person, including minimum purchase obligations, or any similar “take or pay” provisions or (D) exclusive manufacturing rights, exclusive marketing or distribution rights, “most favored nation” pricing provisions or exclusive rights with respect to a geography, supply, service or product, in each case, other than confidentiality agreements entered into in the ordinary course of business;
(xiv) any Contract requiring or otherwise relating to any future capital expenditures by the Company or its Subsidiaries in excess of $[*] in any of its Subsidiariescalendar year;
(iiixv) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained Contract that provides for the indemnification of any Person by the Company or its Subsidiary, in each case, which would reasonably be expected to require payments in excess of $[*] in any calendar year, other than indemnification obligations entered into in the ordinary course of its Subsidiariesbusiness;
(ivxvi) Any agreement containing covenants limiting any Contract (provided that this clause (xvi) shall not require the freedom scheduling of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(vpurchase order) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use conduct of offresearch studies, pre-theclinical or clinical studies, manufacturing, distribution, supply, marketing or co-shelf software programs;
(vi) Any agreement involving the Company promotion of any products in each case which have been or any of its Subsidiaries for the development of Softwarewhich are being marketed, including any components of Company Software
(vii) Any joint venturedistributed, joint development supported, sold or partnership agreement licensed out on a commercial basis, in each case by or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any on behalf of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andor
(xxvii) Any agreement under which any Person has Contract (except for any direct or indirect pecuniary interest purchase order) with a Material Supplier, other than confidentiality agreements entered into in the Company or any ordinary course of its material assetsbusiness.
(b) The contracts required Company has delivered to be Parent or its counsel true, complete and correct copies (or, in the case of oral Contracts, summaries (in reasonable detail of all material provisions)) of each Material Contract (in each case, as amended to date) listed or described on Schedule 4.15(aSection 3.12(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer Schedules. Each such Material Contract is a truevalid, correct binding and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each enforceable agreement of the Contracts applicable member of the Company Group party thereto and is in full force and effect and all payments and and, to the Knowledge of the Company, each other amounts required to be paid by Seller, party thereto in accordance with its terms.
(c) No member of the Company Group has, in any material respect, violated or breached, or committed any of its Subsidiariesdefault under, which have become dueany Material Contract and, have been paid, (ii) neither to the Company nor any of its Subsidiaries is in default of its obligations under any Knowledge of the ContractsCompany, and no eventother party thereto has materially violated or breached, occurrenceor committed any material default under, any Material Contract (nor, to the Knowledge of the Company, does there exist any condition or act which, with upon the giving of notice, the lapse passage of time or the happening giving of notice or both, would reasonably be expected to cause such a material violation, breach or default under any further condition could become a default by Material Contract). Since January 1, 2021, no member of the Company Group has received any written notice of default or its Subsidiaries breach under any Material Contract. No event has occurred as a result of actions or inactions of a member of the Company Group that will result in a material violation or material breach of any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to provisions of any other party under any of the ContractsMaterial Contract.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 3.13(a) lists all Material Contracts (as hereinafter defined) as of the date hereof. For purposes of this Agreement, "Material Contracts" shall mean, other than group sales contracts (including third party booking agency agreements), (i) all contracts, agreements or understandings with customers, suppliers and distributors of the Company Disclosure Schedule contains and the Subsidiaries involving any payments in an amount in excess of Five Hundred Thousand Dollars ($500,000) within a list twelve (and. where oral12) month period; and (ii) all acquisition, a summary descriptionmerger, asset purchase or sale agreements (A) of:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company entered into by Sellers or any of its Subsidiaries is a party, their affiliates within three (3) years prior to the date hereof or by which (B) providing for continuing payment obligations of the Company or any of its Subsidiaries, their respective businesses or assets; (iii) all agreements which provide for, or relate to, the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into incurrence by the Company or any Subsidiary of its Subsidiaries;
indebtedness for borrowed money (iii) All employment including any interest rate or foreign currency swap, cap, collar or hedge agreements, consulting financial products insurance or options or forwards on such agreements, or other similar agreements and executive compensation plans affecting any for the purpose of managing the interest rate or foreign exchange risk associated with its financing); (iv) all guaranties of the obligations of persons employed or retained by other than the Company or any Subsidiary; (v) any settlement agreements with respect to litigation under which the Company or any Subsidiary has continuing material obligations; (vi) all agreements that limit the ability of any Subsidiary to pay dividends to its Subsidiaries;
parent; (ivvii) Any agreement containing covenants limiting all agreements that limit the freedom ability of the Company or any of its Subsidiaries to compete engage in any line of business or in any a business in a geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
area; (viii) Any agreement all contracts regarding the sponsorship of indemnification or guaranty involving the Company or any of its Subsidiaries;
athletic competitions; and (ix) Any agreement with any of all other "material contracts" within the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change meaning set forth in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(aItem 601(b)(10) of Regulation S-K promulgated under the Company Disclosure Schedule are referred to in this Agreement as the “ContractsExchange Act.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contracts.
Appears in 1 contract
Sources: Stock Purchase Agreement (CNL Hospitality Properties Inc)
Contracts and Commitments. (a) Schedule 4.15 of the Company Disclosure Schedule contains NAVIO is not a list (and. where oral, a summary description) ofparty or subject to:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company 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 that 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 its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, employees other than executive officers) such severance agreements as are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into not different from standard arrangements offered to employees generally in the ordinary course of business consistent with NAVIO's past practice practices, a description of which is set forth in the NAVIO Disclosure Schedule and involves payments (B) such agreements as may be imposed or receipts in excess of Fifty Thousand Dollars ($50,000)implied by law;
(ii) Any Real Property Lease entered into plans, contracts or arrangements, written or oral, which collectively require aggregate payments by NAVIO in excess of $50,000 for bonuses, pensions, deferred compensation, severance pay or benefits, retirement payments, profit-sharing, or the Company or any of its Subsidiarieslike;
(iii) All employment agreementsAny joint marketing, consulting agreements and executive compensation plans affecting any persons employed joint development or retained by the Company joint venture contract or arrangement or any other agreement that has involved or is expected to involve a sharing of its Subsidiariesprofits with other persons;
(iv) Any existing OEM agreement, distribution agreement, volume purchase agreement, or other similar agreement pursuant to which NAVIO 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 NAVIO is required to make on an annual basis exceeds $100,000;
(vi) Any agreement, contract, mortgage, indenture, lease, instrument, license, franchise, permit, concession, arrangement, commitment or authorization that may be, by its terms, terminated or breached by reason of the execution of this Agreement, the Merger Certificate or any NAVIO Ancillary Agreement, the closing of the Merger, or the consummation of the transactions contemplated hereby or thereby;
(vii) Except for trade indebtedness incurred in the ordinary course of business, any instrument evidencing or related in any way to indebtedness in excess of $50,000 incurred in the acquisition of companies or other entities or indebtedness in excess of $50,000 for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, guarantee, indemnification or otherwise;
(viii) Any license agreement, either as licensor or licensee (excluding nonexclusive object code software licenses granted to end-users in the ordinary course of business that permit use of software products without a right to modify, distribute or sublicense the same ("END-USER LICENSES"));
(ix) Any contract containing covenants limiting the purporting to limit NAVIO's freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location area or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andthird party;
(x) Any agreement under which any Person has any direct agreement, contract or indirect pecuniary interest commitment relating to capital expenditures and involving future obligations in the Company excess of $50,000; or
(xi) Any other agreement, contract or any of its commitment that is material assetsto NAVIO.
(b) The contracts required to be Each agreement, contract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license and commitment listed or described on Schedule 4.15(a) of in the Company NAVIO Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct is valid and complete copy of all written Contracts (binding on NAVIO and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect effect, and all payments and neither NAVIO, nor to the knowledge of NAVIO any other amounts required to be paid by Sellerparty thereto, the Company has breached in any material respect any provision of, or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default in any material respect 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 NAVIO which has or could reasonably be expected to have the effect of its obligations under prohibiting or materially impairing any material current business practice of the ContractsNAVIO, and no event, occurrence, condition or act which, with the giving any acquisition of notice, the lapse of time material property by NAVIO or the happening conduct of any further condition could become a default business by the Company NAVIO as currently conducted or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company as proposed to any other party under any of the Contractsbe conducted.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 of the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements Except with regard to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking Contracts or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is agreements set forth on the Franchise Schedule or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described set forth on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by SellerSchedule, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under a party to any of the Contractsfollowing contracts, and no eventother agreements or arrangements: (i) collective bargaining agreement or contract with any labor union; (ii) bonus, occurrencepension, condition profit sharing, retirement or act whichother form of deferred compensation plan, other than as set forth in Section 5.11 or the Disclosure Schedules relating thereto; (iii) stock purchase, stock option or similar plan; (iv) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis providing for base compensation in excess of $150,000 per annum; (v) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (vi) guaranty of any obligation for borrowed money or other material guaranty; (vii) lease or agreement 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; (viii) lease or agreement 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; (ix) contract or group of related contracts with the giving same party for the purchase of noticeproducts or services, other than purchase orders entered into in the lapse ordinary course of time or business, under which the happening undelivered balance of any further condition could become such products and services has a default selling price in excess of $250,000 which cannot be cancelled by the Company or any of its Subsidiaries without penalty or without more than 90 days’ notice; (x) contract or group of related contracts with the same party for the sale of products or services, other than purchase orders entered into in the ordinary course of business, under any which the undelivered balance of the Contracts, and (iii) since the Financial Date, no waiver such products or services has been granted by Seller or a sales price in excess of $250,000 which cannot be cancelled by the Company or any of its Subsidiaries without penalty or without more than 90 days’ notice; (xi) contract which materially prohibits the Company or any of its Subsidiaries from freely engaging in business anywhere in the world; (xii) contracts relating to the licensing of 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 (other than (A) contracts for generally commercially available off-the-shelf software and (B) the Franchise Documents), in each case involving consideration in excess of $150,000 per annum; and (xiii) all agreements between or among the Company or any Subsidiary, on the one hand, and Seller or any of its Affiliates (other than the Company or any Subsidiary), on the other hand.
(b) Each of the contracts listed on the Contracts Schedule is in full force and effect, neither the Company nor any of its Subsidiaries (as applicable) is in material default under any contract listed on the Contracts Schedule, and, to the knowledge of Seller, the other party under any to each of the Contractscontracts listed on the Contracts Schedule in not in material default thereunder.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 3.9(a) (collectively, the “Material Contracts”), as of the date hereof, neither the Company Disclosure Schedule contains a list (and. where oralnor any of its Subsidiaries is party to, a summary description) ofor is otherwise bound by, any:
(i) All collective bargaining agreement or other contract with any Union;
(ii) stock purchase, stock option or similar plan;
(iii) contract for the employment or engagement of any officer, individual employee or other person on a full-time, part-time, temporary, consulting or other basis providing for annual base compensation in excess of $125,000, in each case other than contracts terminable by the Company for any reason upon less than thirty (30) days’ notice without incurring any liability;
(iv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any of their assets;
(v) guaranty of any obligation for borrowed money or other material contractsguaranty;
(vi) lease or agreement under which it is lessee of, commitmentsor holds or operates any personal property owned by any other party, agreements, leases, licenses, undertakings and other arrangements for which the annual rental exceeds $100,000;
(vii) agreements relating to which any completed business acquisition by the Company or any of its Subsidiaries is a party, within the last four years;
(viii) (i) contract pursuant to which one or by which more of the Company or its Subsidiaries uses Intellectual Property owned by another Person material to the conduct of the Business (excluding (A) shrink-wrap, click-through or similar non-exclusive license agreements, in each case for Software, (x) with total annual payments not in excess of $50,000 in the aggregate per vendor, (y) is obtained on generally available standard commercial terms, and (z) is not distributed with, incorporated in, or necessary for use or development of, any product or service of the Company or its Subsidiaries, their respective businesses (B) non-disclosure agreements entered into in the Ordinary Course and (C) non-exclusive license agreements with, consultants and independent contractors of one or assets, or the Shares, are bound or affected or which affect the consummation more of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking Company or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) its Subsidiaries entered into outside on the ordinary course of business consistent with past practice, Company’s or its Subsidiaries’ respective standard form(s) (iior a substantially similar form) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000business);
, (ii) Any Real Property Lease entered into by any contract pursuant to which one or more of the Company or its Subsidiaries grants to another Person the right to use any of its Subsidiaries;
the Company Intellectual Property (excluding non-exclusive licenses granted to customers in the Ordinary Course), and (iii) All employment all contracts (including settlement agreements, consulting agreements co-existence agreements, and executive compensation plans affecting any persons employed or retained by consent agreements) to which the Company or its Subsidiaries is a party or is otherwise bound, pursuant to which the Company is restricted from using, registering, or enforcing Company Intellectual Property in any of its Subsidiaries;material respect; or
(ivix) Any agreement containing covenants limiting the freedom of contract which prohibits the Company or any of its Subsidiaries to compete from freely engaging in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest anywhere in the Company or any of its material assetsworld.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer the Purchaser a true, true and correct and complete copy of all written Contracts contracts which are referred to on Schedule 3.9(a).
(and where oral, a written summary description of such oral Contractsc) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither Neither the Company nor any of its Subsidiaries is in default of its obligations in any material respect under any Material Contract. All Material Contracts constitute legal, valid and binding obligations of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contractssuch Subsidiary, and (iii) since the Financial Date, no waiver has been granted by Seller or by are enforceable against the Company or such Subsidiary 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. Neither the Company nor any Subsidiary has received any written notice that any party intends to terminate, cancel, or not renew any other party under any of the ContractsMaterial Contract.
Appears in 1 contract
Contracts and Commitments. (a) Except as filed as an exhibit to Parent’s SEC Reports or set forth on Schedule 4.15 4.15, and except as contemplated by this Agreement, neither Parent, nor the Parent Subsidiaries, nor the entities listed on Schedule 4.1(b) is a party to or bound by any oral or written contract, obligation or commitment of any type in any of the Company Disclosure Schedule contains a list (and. where oral, a summary description) offollowing categories:
(i) All material contractsagreements or arrangements that provide for employment other than at will or that contain severance pay, commitmentsunderstandings with respect to tax arrangements, agreements, leases, licenses, undertakings and other arrangements understandings with respect to which the Company or any of its Subsidiaries is a partyexpatriate benefits, or post-employment liabilities or obligations;
(ii) agreements or plans under which benefits will be increased or accelerated by which the Company or occurrence of any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contractby this Agreement, commitmentor under which the value of the benefits will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) agreements, agreement, lease, license, undertaking contracts or commitments currently in force relating to the disposition or acquisition of assets other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside than in the ordinary course of business, or relating to an ownership interest in any corporation, partnership, joint venture or other business consistent enterprise;
(iv) agreements, contracts or commitments for the purchase of materials, supplies or equipment, under which the aggregate payments for the past twelve (12) months exceeded $100,000, which are with past practicesole or single source suppliers;
(v) guarantees or other agreements, contracts or commitments under which Parent or any of the Parent Subsidiaries is absolutely or contingently liable for (A) the performance of any other Person, firm or corporation (other than Parent or the Parent Subsidiaries), (B) the whole or any part of the indebtedness or liabilities of any other Person, firm or corporation (other than Parent or the Parent Subsidiaries), or (iiC) entered into indemnification obligations to officers and directors;
(vi) powers of attorney authorizing the incurrence of a material obligation on the part of Parent or the Parent Subsidiaries;
(vii) agreements, contracts or commitments which limit or restrict (A) where Parent or any of the Parent Subsidiaries may conduct business, (B) the type or lines of business (current or future) in which they may engage, or (C) any acquisition of assets or stock (tangible or intangible) by Parent or any of the Parent Subsidiaries;
(viii) agreements, contracts or commitments, under which the aggregate payments or receipts for the past 12 months exceeded $100,000, containing any agreement with respect to a change of control of Parent or any of the Parent Subsidiaries;
(ix) agreements, contracts or commitments for the borrowing or lending of money, or the availability of credit (except credit extended by Parent or any of the Parent Subsidiaries to customers in the ordinary course of business and consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000practice);
(iix) Any Real Property Lease entered into by any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the Company or any exchange of its Subsidiaries;currency; or
(iiixi) All employment agreementsany agreement, consulting agreements and executive compensation plans affecting any persons employed contract or retained commitment that would be otherwise required to be filed as an exhibit to a periodic report under the Exchange Act, as provided by Rule 601 of Regulation S-K promulgated under the Company Exchange Act. Each contract, agreement or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom commitment of the Company or any of its Subsidiaries type described in this Section 4.15 is referred to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (herein as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsParent Contract.”
(b) The contracts required to be listed or described on Schedule 4.15(a) Neither Parent nor any of the Company Disclosure Schedule are referred Parent Subsidiaries, nor to in this Agreement as the “Contracts.” Seller knowledge of Parent any other party to a Parent Contract, has delivered breached, violated or made available defaulted under, or received notice that it has breached, violated or defaulted under (nor does there exist any condition under which, with the passage of time or the giving of notice, or both, could reasonably be expected to Acquirer cause such a truebreach, correct and complete copy of all written Contracts (and where oralviolation or default under) any Parent Contract, a written summary description of such oral Contracts) together with all amendmentsother than any breaches, modifications and assignments thereof. Except as would violations or defaults which have not had, or could not reasonably be expected to have, individually or in the aggregate, a Company Parent Material Adverse Effect.
(c) Each Parent Contract is a valid, (i) each binding and enforceable obligation of Parent and to the knowledge of Parent, of the Contracts is other party or parties thereto, in accordance with its terms, and in full force and effect, except where the failure to be valid, binding, enforceable and in full force and effect has not had, or could not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect and all payments to the extent enforcement may be limited by applicable bankruptcy, insolvency, moratorium or other laws affecting the enforcement of creditors’ rights governing or by general principles of equity.
(d) An accurate and other amounts required to be paid by Seller, the Company or any complete copy of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver each Parent Contract has been granted by Seller or by the Company made available (including via ▇▇▇▇▇) to any other party under any of the ContractsCompany.
Appears in 1 contract
Sources: Merger Agreement (Quepasa Corp)
Contracts and Commitments. (ai) Schedule 4.15 of Except as disclosed in the Company Disclosure Schedule contains VitalStream Securities and Exchange Commission Reports, as expressly contemplated by this Agreement or as set forth in SCHEDULE 4(l) attached hereto, neither VitalStream nor any VitalStream Subsidiary is a list (and. where party to or bound by any written or oral, a summary description) of:
(iA) All material contractspension, commitmentsprofit 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 or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, leasesprograms, licensespolicies or arrangements;
(B) contract for the employment of any officer, undertakings and individual employee or other arrangements Person on a full-time, part-time, consulting or 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 Ordinary Course of Business;
(D) contract under which VitalStream or any 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 Company aggregate annual rental payments do not exceed $25,000;
(I) lease or agreement under which VitalStream or any VitalStream Subsidiary is lessor of its Subsidiaries is a partyor permits any third party to hold or operate any property, real or personal, owned or controlled by which the Company VitalStream or any VitalStream Subsidiary;
(J) contract or group of its Subsidiaries, their respective businesses related contracts with the same party or assets, group of Affiliated parties the performance of which involves the payment by VitalStream or the Shares, are bound or affected or which affect the consummation any VitalStream Subsidiary of the transactions contemplated hereby. Any contract, commitment, agreement, leaseconsideration in excess of $25,000; annually;
(K) assignment, license, undertaking indemnification or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was agreement with respect to any intangible property (iincluding any Intellectual Property Rights) entered into outside the ordinary course Ordinary Course of business consistent Business;
(L) warranty agreement with past practicerespect 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 (ii) entered into in vetoes on the ordinary course sale of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000the 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
(P) any other agreement which is material to the operation of its Hosting Business or business prospects or involves a consideration in excess of $25,000; annually.
(ii) Any Real Property Lease entered into All of the contracts, agreements and instruments set forth in SCHEDULE 4(l) attached hereto (the "VITALSTREAM MATERIAL CONTRACTS") are valid, binding and enforceable in accordance with their respective terms, except as such enforceability may be limited by (i) applicable insolvency, bankruptcy, reorganization, moratorium or other similar Laws affecting creditors' rights generally, and (ii) applicable equitable principles (whether considered in a proceeding at law or in equity). Except as set forth on SCHEDULE 4(l)(ii) attached hereto, VitalStream and each VitalStream Subsidiary has performed all material obligations required to be performed by it under the Company VitalStream Material Contracts and is not in default under or in breach of nor in receipt of any claim of default or breach under any VitalStream Material Contracts; no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by VitalStream or any of its Subsidiaries;the 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 Contracts.
(iii) All employment agreementsOther than VitalStream Material Contracts included as exhibits to the VitalStream Securities and Exchange Commission Reports, consulting agreements Hosting has been supplied with a true and executive compensation plans affecting any persons employed or retained by the Company or any correct copy of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom each of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Softwarewritten VitalStream Material Contracts, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications waivers or other changes thereto, and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) an accurate description of each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the oral VitalStream Material Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Vitalstream Holdings Inc)
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 of 5.10(a), neither the Company Disclosure Schedule contains nor any of its Subsidiaries is a list (and. where oral, a summary description) ofparty to any:
(i) All collective bargaining agreement or any Contract with a union, works council, or other similar labor organization or other employee representative body;
(ii) bonus, severance, retention, pension, profit sharing, commission, retirement or other form of deferred compensation plan, other than as set forth on Schedule 5.14 and, in each case, applicable to any Company Employees;
(iii) equity purchase, equity option or similar plan applicable to any Company Employees;
(iv) Contract for the employment or engagement of any individual on a full-time or consulting basis providing for base compensation in excess of $[***] per annum;
(v) Contract requiring a capital expenditure by the Company or any of its Subsidiaries in excess of $[***] in the twelve (12) months following the date hereof;
(vi) Contract relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries;
(vii) guaranty of any obligation for borrowed money or other material contractsguaranty;
(viii) any letter of credit, commitmentscustoms bond, agreementssurety bond, leasesperformance bonds or similar arrangement;
(ix) Contract under which it is lessee of, licensesor holds or operates any personal property owned by any other party, undertakings excluding any Company vehicles, for which the annual rental exceeds $[***];
(x) any 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 $[***];
(xi) other than purchase orders entered into in the ordinary course of business and Leases, any Contract or group of related Contracts with any Material Supplier and all other Contracts pursuant to which the Company or its Subsidiaries has paid in excess of $[***] during the twelve (12) month period ending on December 31, 2023;
(xii) other than purchase orders entered into in the ordinary course of business, any Contract or group of related Contracts with any Material Customer;
(xiii) joint venture, partnership, strategic alliance, profit/loss sharing arrangements or similar Contract, in each case, other than those between or among the Company’s wholly-owned Subsidiaries;
(xiv) (A) material Inbound Licenses and material Outbound Licenses or (B) any other material Contract imposing any material limitation on the Company’s or any of its Subsidiaries’ ability to use, register, license, protect, enforce, or disclose any Intellectual Property material to the business of the Company or any of its Subsidiaries, provided that in each case of (A) and (B) Company is not required to list the following Material Contracts: (1) non-exclusive licenses for generally commercially available, non-custom third-party software used by the Company or any of its Subsidiaries that is not incorporated into any Developed Technology and with an annual license fee of less than $[***], (2) Contracts entered into with employees or third-party contractors in the ordinary course of business conveying the assignment to, or full ownership by, the Company or any of its Subsidiaries of all inventions and Intellectual Property developed by such employees or third-party contractors for the Company or any of its Subsidiaries without further consideration or any restrictions or obligations of the Company or any of its Subsidiaries on the use or ownership of such inventions or Intellectual Property and on substantially the Company’s or its Subsidiaries’ standard forms (an “IP Assignment Agreement”), (3) Contracts primarily for the provision of services to the Company or any of its Subsidiaries in the ordinary course of business where the granting or obtaining (or agreement to obtain) any right to use, or permission or agreement to permit any other Person to use, any Intellectual Property is on a non-exclusive basis, is granted solely as necessary to enable the Person to provide such services to the Company or such Subsidiary, and is ancillary or incidental to the transactions contemplated in such Contract or (4) any Contracts entered into in the ordinary course of business by the Company or the applicable Subsidiary with customers to which the Company or the applicable Subsidiary grants to such customers a non-exclusive license to any Company IP;
(xv) Contract relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or material line of business entered into during the past three (3) years and under which the Company or any of its Subsidiaries is a partyhas any material executory covenants or other executory obligations (other than solely in respect of customary fundamental representations) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or material line of business;
(xvi) settlement, conciliation, mediation, or by which similar Contract, in each case, pursuant to which, following the Closing, the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts Subsidiaries has any executory payment obligation in excess of Fifty Thousand Dollars ($50,000)[***] or is subject to or which purports to materially restrict the future operations of the Company and its Subsidiaries;
(iixvii) Any Real Property Lease entered into Contract containing “most favored nation” or “best pricing” provisions (an “MFN Provision”), or other contract that contains exclusivity, rights of first refusal or rights of first negotiation granted by the Company or any of its Subsidiaries;
(iiixviii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed Contract which provides for or retained by otherwise includes a minimum volume or purchase requirement of the Company or any of its Subsidiaries;
(ivxix) Any agreement containing covenants limiting Contract that purports to materially limit or materially restrict the freedom ability of the Company or any of its Subsidiaries (A) to compete or engage in any material respects in any line of business or with any Person or in any geographic location area, (B) to sell any material product or other material asset or to use perform any material services for any other Person or disclose (C) to transact business with any information in other Person (other than customary restrictions on the Company’s or its possessionSubsidiaries’ right to solicit for employment individuals employed by the counterparty to the applicable Contract);
(vxx) Any license agreements involving Current Government Contract with a current contract value of over $[***];
(xxi) power of attorney granted by the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;that is currently in effect; or
(vixxii) Any agreement involving the Company Contract relating to any interest rate, currency, commodity derivatives or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetshedging transaction.
(b) The contracts required to be listed or described on Schedule 4.15(a) As of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effectdate hereof, (ix) each of the Contracts listed or required to be listed on Schedule 5.10(a) and (y) each Contract pursuant to which the Company or its Subsidiaries has received in excess of $[***] during the twelve (12) month period ending on December 31, 2023 (each of the Contracts described in the immediately preceding clauses (x) and (y), a “Material Contract”) is in full force and effect effect, and all payments is a legal, valid and other amounts required to be paid by Seller, binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Except as set forth on Schedule 5.10(b), neither the Company nor any Subsidiary of its Subsidiariesthe Company (as applicable) is in material default under any Material Contract, which have become dueand, have to the knowledge of the Company, the other party to each Material Contract is not in material default thereunder. Neither the Company nor any Subsidiary of the Company (as applicable) has materially violated the terms of any MFN Provision in any Material Contract, or otherwise taken any action that would cause a party to be entitled to a material benefit, right or privilege as a result of an MFN Provision in a Material Contract having been paidtriggered. Except as set forth on Schedule 5.10(b), no event has occurred that with the lapse of time or the giving of notice or both would reasonably be expected to constitute a material breach or default on the part of the Company, or any Subsidiary of the Company or, to the knowledge of the Company, any other party under any Material Contract. As of the date hereof, (iii) neither the Company nor any of its Subsidiaries is in default of its obligations under any Subsidiary of the ContractsCompany (as applicable) and, to the knowledge of the Company, no other party to any Material Contract has exercised any termination rights with respect thereto and (ii) no eventparty has given written, occurrenceor to the knowledge of the Company, condition or act whichoral, with the giving of notice, the lapse of time or the happening notice of any further condition could become a default by material dispute with respect to any Material Contract. There have been no indemnification claims against the Company or its Subsidiaries under any Material Contract within the last three (3) years. Except as set forth on Schedule 5.10(b), the Company has made available to Parent true and correct copies of each Material Contract (other than Contracts that are Material Contracts solely pursuant to clause (y) of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractsdefinition thereof).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Cognizant Technology Solutions Corp)
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 of 2.11(a) or Schedule 2.14(a), Neither the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or nor any of its Subsidiaries is a party, or by subject, to any:
(i) agreement relating to any completed or pending business acquisition or divestiture since January 1, 2014;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan;
(iii) stock option or similar plan;
(iv) contract (A) for the employment of any officer, individual employee, or other person, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby, or (C) that provides severance or other benefits for any person;
(v) agreement under which the Company or any of its Subsidiaries created, incurred or assumed any Indebtedness (including any conditional sales agreement, sale-leaseback, or capitalized lease) or mortgaging, pledging or otherwise granting or placing a Lien on any portion of any of the Company’s or any of its Subsidiaries, their respective businesses or ' assets, other than as identified in Schedule 2.20;
(vi) guaranty of any Indebtedness;
(vii) lease or the Shares, are bound or affected or agreement under which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is lessee of or was holds or operates any personal property owned by any other Person, for which the annual rental exceeds $50,000;
(iviii) entered into outside lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, for which the ordinary course annual rental exceeds $50,000;
(ix) contract or group of business consistent related contracts with past practicethe same party for the purchase by the Company or any of its Subsidiaries of products or services, or under which the undelivered balance of such products and services has a purchase price in excess of $50,000 in the aggregate (ii) other than purchase orders and transportation contracts entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000business);
(iix) Any Real Property Lease entered into contract or group of related contracts with the same party for the sale by the Company or any of its SubsidiariesSubsidiaries of products or services under which the undelivered balance of such products or services has a sales price in excess of $50,000 in the aggregate (other than sales orders and transportation contracts entered into in the ordinary course of business);
(iiixi) All employment agreementsany other contract, consulting agreements and executive compensation plans affecting any persons employed lease, or retained agreement, other than contracts for the purchase of tractors or trailers disclosed on Schedule 2.09(e), that cannot be canceled by the Company or any of its SubsidiariesSubsidiaries without penalty or further payment or obligation and without more than thirty (30) days’ notice and with remaining fixed payments in excess of $50,000 under any such contract;
(ivxii) Any agreement containing covenants limiting that in any way purport to restrict the freedom right of the Company to engage in its current line of business, engage in any line of business, compete with any Person, or solicit customers;
(xiii) hedging arrangement or forward, swap, derivatives or futures contract;
(xiv) joint venture, partnership, franchise, joint marketing agreement, or any other similar contract or agreement (including sharing of profits, losses, costs or liabilities by the Company or any Subsidiary thereof with any other Person);
(xv) material licensing agreement or other material contract or agreement with respect to Intellectual Property, including material contracts or agreements with current or former employees, consultants, or contractors regarding the appropriation or non-disclosure of any Intellectual Property, other than contracts with less than $50,000 fixed payments remaining;
(xvi) agreement under which the Company or any Subsidiary thereof has made loans or advances to any other Person, and such advances or loans remain outstanding in an amount greater than $15,000, except advancement of reimbursable ordinary and necessary business expenses made to directors, officers, employees, and independent contractors (including but not limited to advances to owner-operators for vehicle repairs) of the Company or any Subsidiary thereof in the ordinary course of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possessionbusiness;
(vxvii) Any license agreements involving the Company contract or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s consultant or its Subsidiaries’ employee or any current or former officersofficer, directors director, shareholder, or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement Affiliate of the Company or any Subsidiary thereof, other than at-will arrangements or agreements or ordinary course agreements terminable on less than thirty (30) days’ notice by the Company without accelerated payment or any other penalty;
(xviii) settlement, conciliation or similar agreement, the performance of which will involve payment after the date of this Agreement of consideration in excess of $50,000 or governmental monitoring, consent decree or reporting responsibilities;
(xix) any contract or agreement, not otherwise covered by the foregoing, that is otherwise material to the Company or its Subsidiaries, whether such payments are payable upon taken as a termination that is voluntary whole, except for contracts or non-voluntaryagreements entered into in the ordinary course of business; andor
(xxx) Any agreement under which any Person has any direct amendment, supplement, or indirect pecuniary interest modification (whether oral or written) in the Company or respect of any of its material assetsthe foregoing.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer Buyer a true, correct correct, and complete copy of each written agreement set forth on Schedule 2.11(a) or Schedule 2.14(a), including all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereofamendments thereto. Except With respect to each agreement set forth on Schedule 2.11(a) or Schedule 2.14(a), except as would not haveset forth on Schedule 2.11(a) or Schedule 2.14(a), individually or in the aggregate, a Company Material Adverse Effect, such agreement: (i) each of the Contracts is valid, binding, and in full force and effect in all material respects; (ii) will remain unmodified and all payments in full force and other amounts required effect immediately after the Closing without any right on the part of any counterparty, including with the passage of time or notice, or both, to be paid terminate, modify or impose any penalty as a result of the transactions contemplated hereby; (iii) is and will remain, including with the passage of time or notice, or both, immediately after the Closing enforceable by Seller, the Company or any of its Subsidiaries, which have become dueas applicable, have been paid, in accordance with its respective terms; and (iiiv) neither the Company nor any of its Subsidiaries Subsidiaries, nor, to Seller’s Knowledge, any other party, is in material breach or default under such agreement. Neither the Company nor any of its obligations under Subsidiaries has received any written notice (or to Seller’s Knowledge, any other notice) of the intention of any party to terminate any agreement listed on Schedule 2.11(a). There are no oral agreements with respect to the subject matter of Schedule 2.11(a) or Schedule 2.14(a) that, individually or in the aggregate, are material to the Company or any of its Subsidiaries.
(c) Schedule 2.11(c) sets forth a list of the Contractstransportation contracts with the ten (10) largest non-Affiliated customers (by consolidated revenue) of the Company and its Subsidiaries for the first five (5) months of 2017, true, correct, and no eventcomplete copies of which, occurrenceincluding all modifications and amendments thereto, condition or act whichhave been made available to Buyer, with the giving exception of noticepricing and certain other competitively sensitive data that has been redacted (collectively, “Customer Contracts”). Neither the lapse Company nor any of time its Subsidiaries, nor, to Seller’s Knowledge, any other party, is in material breach or the happening of default under any further condition could become a default by such Customer Contract. Other than customary notice to the Company or any of its Subsidiaries that the Company or such Subsidiary must bid to continue to provide services to a customer as part of the customer’s normal bid cycles, neither the Company nor any of its Subsidiaries has received, written notice (or, to Seller’s Knowledge, any other notice) from any customer that such customer intends to terminate, substantially modify, fail to renew, or reduce volumes substantially under, any such Customer Contract.
(d) Schedule 2.11(d) sets forth a list of the contracts with the ten (10) largest vendors or suppliers (by consolidated expenses) of the Company and its Subsidiaries for the first five (5) months of 2017, true, correct, and complete copies of which, including all modifications and amendments thereto, have been made available to Buyer, with the exception of pricing and certain other competitively sensitive data that has been redacted (collectively, “Vendor Contracts”). Neither the Company nor any of its Subsidiaries, nor, to Seller’s Knowledge, any other party, is in material breach or default under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by such Vendor Contract. Neither the Company nor any of its Subsidiaries has received, written notice (or, to Seller’s Knowledge, any other party notice) from any vendor that such vendor intends to terminate, substantially modify, fail to renew, or reduce volumes substantially under any of the Contractssuch Vendor Contract.
Appears in 1 contract
Contracts and Commitments. (a) Except as specifically contemplated by this Agreement and except as set forth in Schedule 4.15 of 3.9, the Company Disclosure Schedule contains Companies are not a list (and. where party to or bound by, whether written or oral, a summary description) ofany:
(i) All material contractscollective bargaining agreement or Contract with any labor union or any bonus, commitmentscommissions, pension, profit sharing, retirement or any other form of deferred compensation or incentive plan or any stock purchase, stock option, hospitalization insurance or similar plan or practice;
(ii) Contract for the employment of any officer, individual employee or other Person on a full-time, consulting or independent contractor basis or any severance agreements or change-of-control agreements;
(iii) Contract relating to Indebtedness or to mortgaging, leases, licenses, undertakings and other arrangements to which the Company pledging or otherwise placing a Lien on any of its Subsidiaries is assets, other than a partyPermitted Encumbrance;
(iv) Contract with respect to the lending or investing of funds (other than accounts receivable incurred in the Ordinary Course of Business);
(v) Contract for the purchase of products, Inventory, supplies, equipment, machinery, other tangible personal property or services by the Companies, under which the undelivered balance of such products, Inventory, supplies, equipment, machinery, other personal property or services has an aggregate price or other cost in excess of US $50,000;
(vi) Contract with any customer of the Companies that has generated at least US $50,000 of net revenue to the Companies during the nine-month period ended September 30, 2017 under which the customer has a remaining payment obligation in excess of US $10,000;
(vii) Contract or purchase order for capital expenditures or the acquisition or construction of fixed assets requiring the payment by the Companies of an amount in excess of US $50,000;
(viii) license or royalty Contracts, or management, consulting, or advisory contracts;
(ix) guaranty of any obligation, other than endorsements made for collection;
(x) Contract under which any of the Companies is lessee of, or holds or operates, any personal property owned by which any other party calling for payments by the relevant Company or under which any of its Subsidiariesthe Companies is lessor of or permits any third party to hold or operate any property, their respective businesses real or assetspersonal, owned or controlled by it;
(xi) Contract or group of related Contracts with the same party continuing over a period of more than six months from the date or dates thereof, not terminable by it on 60 days or less notice without penalties (except leases for real property);
(xii) Contract relating to the ownership of or investments in any business or enterprise (including, but not limited to, investments in joint ventures and minority equity investments);
(xiii) Contract which prohibits any of the Companies from freely engaging in business anywhere in the world;
(xiv) Contract relating to the distribution, marketing, advertising or sales of any of the Companies’ products and/or services;
(xv) Contract pursuant to which it subcontracts work to third parties;
(xvi) powers of attorney existing and in force and effect as of the Closing Date;
(xvii) Contract relating to the acquisition or sale of the Business (or any material portion thereof) or all or a material portion of the assets of the Companies;
(xviii) Contract relating to Transferred Proprietary Rights except as set forth in Schedule 3.10;
(xix) customer Contract containing most-favored-nations pricing provisions;
(xx) supplier or customer Contract containing minimum volume requirements or guarantees;
(xxi) Contract material to the Business and providing for joint research, design or development;
(xxii) Contract involving any resolution or settlement of any actual or threatened litigation, arbitration, claim or other dispute with a value of greater than US $200,000; or
(xxiii) other Contract material to any of the Companies and not entered into in the Ordinary Course of Business.
(b) Except as disclosed in Schedule 3.7(b) or Schedule 3.9, (i) to the Knowledge of Sellers, no Contract disclosed on Schedule 3.7(b) or Schedule 3.9 (each, a “Material Contract” and collectively, the “Material Contracts”) has been materially breached or canceled by the other party and, to the Knowledge of Sellers, there is no anticipated material breach by any other party to any Material Contract, (ii) the Companies have performed all the material obligations required to be performed by them under the Material Contracts to the extent required to be so performed as of the date hereof or as of the Closing Date and are not in material default under or in material breach of any Material Contract and, to the Knowledge of Sellers, no event or condition has occurred or arisen which with the passage of time or the Sharesgiving of notice or both would result in a material default or material breach thereunder by any of the Companies, are bound (iii) the Companies do not have a present expectation or affected or which affect intention of not fully performing any obligation pursuant to any Material Contract, and (iv) each Material Contract is legal, valid, binding, enforceable and in full force and effect and will continue as such following the consummation of the transactions contemplated hereby. Any contract, commitmentexcept as such enforceability may be limited by bankruptcy, agreementinsolvency, leasereorganization, license, undertaking moratorium or other arrangement shall be considered “material” for purposes similar Law affecting creditors’ rights generally and by general principles of this Section 4.15(a)(i) if it equity (regardless of whether enforcement is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into sought in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business a proceeding at law or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsequity).
(bc) The contracts required to be listed During the two-year period ending on the date of this Agreement, the Companies have not used any name or described names under which they have invoiced account debtors, maintained records regarding its assets or otherwise conducted business, other than the names set forth on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts3.9.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contracts.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (SemGroup Corp)
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement or as set forth on the attached "Contracts Schedule" or the attached "Employee Benefits Schedule," neither the Company nor any Subsidiary is a party to or bound by any written or oral:
(a) Schedule 4.15 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 or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(b) contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis providing annual compensation in excess of $100,000 or contract relating to loans to officers, directors or Affiliates which, in the aggregate, exceed $50,000;
(c) contract under which the Company or Subsidiary has advanced or loaned any other Person amounts in the aggregate exceeding $50,000;
(d) 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 Disclosure Schedule contains and its Subsidiaries;
(e) guarantee of any obligation in excess of $25,000 (other than by the Company of a list Wholly-Owned Subsidiary's debts or a guarantee by a Subsidiary of the Company's debts or another Subsidiary's debts);
(and. where oralf) lease or agreement under which the Company or any Subsidiary is lessee of or holds or operates any property, a summary descriptionreal 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 $50,000;
(g) of:other than as set forth on the Assets Schedule, lease or agreement under which the Company or any Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company or any Subsidiary;
(h) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in excess of $100,00 per annum;
(i) assignment, license, indemnification or agreement with respect to any intangible property (including, without limitation, any Intellectual Property Rights) having a value in excess of $50,000;
(j) express warranties with respect to its services rendered or its products sold or leased;
(k) agreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(l) sales, distribution or franchise agreement;
(m) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(n) any other agreement which is material to its operations and business prospects and involves a consideration in excess of $50,000 annually.
(ii) All material of the contracts, commitmentsagreements and instruments set forth on the Contracts Schedule are valid, agreementsbinding and enforceable in accordance with their respective terms. The Company and each Subsidiary have performed all obligations required to be performed by them under the contracts, leasesagreements and instruments listed on the Contracts Schedule and are not in default under or in breach of nor in receipt of any claim of default or breach under any contract, licensesagreement or instrument listed on the Contracts Schedule; no event has occurred which with the passage of time or the giving of notice or both would result in a default, undertakings and other arrangements breach or event of noncompliance by the Company or any Subsidiary under any contract, agreement or instrument to which the Company or any of its Subsidiaries Subsidiary is a party, or by which subject; neither the Company nor any Subsidiary has any present expectation or intention of not fully performing all such obligations; and neither the Company nor any Subsidiary has knowledge of its Subsidiaries, their respective businesses any breach or assets, or anticipated breach by the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any other parties to any contract, commitment, agreement, lease, license, undertaking instrument or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside commitment listed on the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;Contracts Schedule.
(iii) All employment agreementsThe Contracts Schedule shall list each Burger King Franchise Agreement and shall disclose the termination date of each such agreement. The Company has neither any knowledge nor any reason to believe that any franchise agreement terminating within five years after the date of this Agreement will not, consulting agreements and executive compensation plans affecting any persons employed or retained if so requested by the Company or any Company, be renewed on substantially similar terms and without a cost per restaurant in excess of its Subsidiaries;$40,000 for the successor franchise fee payable to Burger King Corporation in connection with such renewal.
(iv) Any agreement containing covenants limiting The Company has made available to the freedom Investors' special counsel a true and correct copy of each of the Company or any written instruments, plans, contracts and agreements and an accurate description of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any each of the Company’s or its Subsidiaries’ current or former officersoral arrangements, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under contracts and agreements which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as on the “Contracts.” Seller has delivered or made available to Acquirer a trueContracts Schedule, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually waivers or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractschanges thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 of 3.09(a), neither the Company Disclosure Schedule contains a list (and. where oral, a summary description) ofnor any of its Subsidiaries is party to or bound by any written:
(i) All (A) collective bargaining agreement or contract with any trade union or other labor organization or (B) Contract with any current or former employee, director or independent contractor providing for future severance, change in control, retention, stay-pay or similar payments;
(ii) written bonus, pension, profit sharing, stock option, employee stock purchase, retirement or other form of deferred compensation plan, other than as described in Section 3.13(a) or the Disclosure Schedules relating thereto;
(iii) (A) Contract for the employment of any officer, individual employee or other person on a full-time, part-time or other basis providing for fixed compensation in excess of $150,000 per annum (other than standard offer letters for at-will employment) or relating to loans to officers, directors or Affiliates pursuant to which it has any material contractsobligation or (B) Contract with any independent contractor or consultant providing for fixed compensation in excess of $150,000 per annum;
(iv) (A) agreement or indenture relating to the borrowing of money or to mortgaging, commitmentspledging or otherwise placing a Lien on any material portion of their assets, agreementsor (B) Contract under which it has advanced or loaned any other Person, leasesthat is not an Affiliate of the Company, licensesamounts exceeding, undertakings and in the aggregate, $100,000;
(v) guaranty of any obligation for Indebtedness or other arrangements material guaranty;
(vi) settlement, conciliation or similar agreement with any Governmental Entity or pursuant to which the Company or its Subsidiaries will be required, after the date of this Agreement, to satisfy any monetary or material non-monetary obligations;
(vii) lease or agreement under which it is lessee or lessor of, or holds or operates, any material personal property owned by any other party, or permits any third party to hold or operate any material personal property owned or controlled by it, in each case for which the annual rental exceeds $150,000;
(viii) agreements relating to any completed material business acquisition by the Company or any of its Subsidiaries within the last three (3) years or pursuant to which the Company or any of its Subsidiaries is a party, has remaining obligations or by liabilities;
(ix) Contract pursuant to which (A) the Company or any of its Subsidiaries, their respective businesses Subsidiaries are licensed or assets, otherwise permitted by a third party to use any Intellectual Property owned by such third party (other than non-exclusive licenses to the Company or any of its Subsidiaries of commercially available “off the Shares, are bound or affected or which affect shelf” software that is not material to the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practiceBusiness), or (iiB) entered into in the ordinary course of business consistent with past practice and involves payments any third party is licensed or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real otherwise permitted to use any Intellectual Property Lease entered into owned or held exclusively by the Company or any of its Subsidiaries;
(iiix) All employment agreementsContract which limits or prohibits the Company or any of its Subsidiaries from competing or freely engaging in business anywhere in the world;
(A) joint venture, consulting agreements and executive compensation plans affecting partnership or similar agreement related to the creation or development of Intellectual Property by or for the Company or any persons employed of its Subsidiaries, or retained (B) Contract providing for the assignment, ownership, creation or development of any Intellectual Property;
(A) Contract that limits the freedom or right of the Company or any of its Subsidiaries to use Intellectual Property owned by the Company or any of its Subsidiaries, (B) any settlement contract, consent-to-use or settlement agreement relating to Intellectual Property, or (C) any Contract granting any exclusive rights to any third party with respect to the Intellectual Property owned by the Company or any of its Subsidiaries;
(ivxiii) Any agreement containing covenants limiting Contract which is not terminable by it upon less than sixty (60) days’ notice without penalty or additional liability and involves payments in excess of $250,000 annually; or
(xiv) any other Contract which involves a consideration in excess of $500,000 annually.
(b) The Company has delivered or made available to the freedom Purchaser true and correct copies of all written Contracts and an accurate description of all oral arrangements or Contracts that are required to be set forth on Schedule 3.09(a), together with all material amendments, waivers or other changes thereto.
(c) Except as set forth on Schedule 3.09(c), (i) each of the Company and its Subsidiaries has performed in all material respects all material obligations required to be performed by it and is not in material default under, in material breach of, nor in receipt of any written Claim of material default or material breach under, any Material Contract; (ii) 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 by the Company or any of its Subsidiaries to compete in under any line of business or in any geographic location or to use or disclose any information in its possession;
Material Contract; and (viii) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officersdate hereof, directors or employees providing for to the payment of any severance pay or payment upon the occurrence of a “change in control” agreement knowledge of the Company there is no material breach or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary threatened material breach by (or non-voluntary; and
ordinary course notice of non-renewal or termination from (xother than any automatic non-renewals or terminations in accordance with such Material Contract’s terms)) Any agreement under which the other parties to any Person has any direct Material Contract. Except for those that have terminated or indirect pecuniary interest expired in accordance with their terms, all of the Company Contracts and plans set forth on Schedule 3.09(a) or any of its material assets.
(b) The contracts required to be listed or described set forth on Schedule 4.15(a3.09(a) of the Company Disclosure Schedule are referred to in this Agreement as (collectively, the “Material Contracts.” Seller has delivered or made available to Acquirer a true, correct ”) are valid and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments constitute legal, valid and other amounts required to be paid by Seller, binding obligations of the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contractssuch Subsidiary, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by are enforceable against the Company or its Subsidiaries under any such Subsidiary in accordance with their respective terms, and, to the Company’s knowledge, constitute legal, valid and binding obligations of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any or parties thereto, enforceable against such party or parties 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 Contractsavailability of specific performance and other equitable remedies.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 3.9(a) sets forth a complete and correct list of all agreements of the Company Disclosure Schedule contains following types to which either of the Parent Parties is a list party (and. where oralcollectively, a summary description) of:
the "Parent Material Contracts"): (i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements agreements that would be required to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or filed as exhibits to Required Reports; (ii) entered into in agreements for the ordinary course purchase, sale or distribution of business consistent with past practice and involves payments products, materials, commodities, supplies or receipts other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration payable by any party in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or 10,000 in any of its Subsidiaries;
one year; (iii) All employment loan agreements, consulting agreements indentures, letters of credit, mortgages, notes and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
other debt instruments; (iv) Any agreement agreements containing covenants limiting the freedom any "change of control" provisions; (v) agreements, arrangements or understandings with any shareholder, employee, director or officer either of the Company Parent Parties or with any affiliate of its Subsidiaries to compete any thereof; (vi) agreements prohibiting either of the Parent Parties from engaging or competing in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
limiting such competition; (vii) Any joint venture, joint development or partnership agreement or and similar agreement or arrangement involving the Company or any of its Subsidiaries;
agreements; (viii) Any agreement acquisition or divestiture agreements relating to the (A) sale or purchase of indemnification assets or guaranty involving stock either of the Company Parent Parties (other than sales of inventory in the ordinary course of business) or (B) the purchase of assets or stock of any other person (other than the purchase of its Subsidiaries;
inventory, supplies or equipment in the ordinary course of business); (ix) Any agreement with any of the Company’s brokerage, finder's or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntaryfinancial advisory agreements; and
(x) Any agreement under which guarantees of indebtedness for borrowed money of any Person has person; (xi) reseller, agent and dealer agreements; (xii) licensing and rights arrangements for any direct Parent Intellectual Property; and (xiii) agreements that, individually or indirect pecuniary interest in together with one or more related agreements, are material to the Company assets, financial condition, business, prospects or any operations either of its material assetsthe Parent Parties.
(b) The contracts required to be listed or described on Schedule 4.15(a) All of the Company Disclosure Schedule Parent Material Contracts are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct valid and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each binding agreements of the Contracts Parent, enforceable in accordance with their terms, and there is in full force and effect and all payments and other amounts required to be paid no default by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any either of the ContractsParent Parties or, and no event, occurrence, condition or act which, with to the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any knowledge of the ContractsParent, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any such Parent Material Contract except as set forth on Schedule 3.9(b). None of the Contractsother parties to the Parent Material Contracts has notified either of the Parent Parties of any intention to terminate a Parent Material Contract.
(c) True and complete copies of all Parent Material Contracts have been delivered to the Target or made available for inspection.
Appears in 1 contract
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement or as set forth on the attached "Contracts Schedule," as of the Closing, the Company is not a party to any written or oral:
(a) Schedule 4.15 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 or arrangement, or any contract with any labor union, or any severance agreements;
(b) contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis providing annual compensation in excess of $50,000 or contract relating to loans to officers, directors or affiliates;
(c) contract under which the Company has advanced or loaned any other Person amounts in the aggregate exceeding $50,000;
(d) agreement or indenture relating to the borrowing of money or the mortgaging, pledging or otherwise placing a lien on any material asset or material group of assets of the Company;
(e) guarantee of any obligation in excess of $50,000;
(f) lease or agreement under which the Company Disclosure Schedule contains 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 $50,000;
(g) 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;
(h) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves a list (and. where oral, a summary description) of:consideration in excess of $50,000;
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, leaseassignment, license, undertaking indemnification or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is agreement with respect to any intangible property (including, without limitation, any patent, trademark, trade name, copyright, know-how, trade secret or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000confidential information);
(iij) Any Real Property Lease entered into by the Company warranty agreement with respect to its services rendered or any of its Subsidiariesproducts sold or leased;
(iiik) All employment agreements, consulting agreements and executive compensation plans affecting agreement under which it has granted any persons employed or retained by the Company or Person any of its Subsidiariesregistration rights (including piggyback rights);
(ivl) Any contract, agreement containing covenants limiting the freedom of the Company or other arrangement with any officer, director, employee or Affiliate, or any Affiliate of its Subsidiaries to compete in any line of business officer, director or in any geographic location or to use or disclose any information in its possessionemployee;
(vm) Any license agreements involving contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;world; or
(vin) Any any other agreement involving the Company which is material to its operations and business prospects or any involves a consideration in excess of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets$50,000 annually.
(bii) The contracts required to be listed or described on Schedule 4.15(a) All of the Company Disclosure contracts, agreements and instruments set forth on the Contracts Schedule are referred to valid, binding and enforceable in this Agreement accordance with their respective terms, except as the “Contracts.” Seller has delivered same may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or made available to Acquirer similar laws affecting the enforcement of creditors' rights generally and general equitable principles regardless of whether such enforceability is considered in a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually proceeding at law or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contracts.in
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 Section 5.8 of the Company Plan Investor Disclosure Schedule contains lists the following Contracts (including all amendments, modifications and supplements thereto) to which a list Plan Investor Group Member is a party as of the date hereof (and. where oraleach a “Plan Investor Material Contract” and collectively, a summary description) ofthe “Plan Investor Material Contracts”), in each case, other than Contracts expressly contemplated by this Agreement or the other Transaction Documents:
(i) All (A) any material contractsContract providing for the borrowing of money or to the issuance of any note, commitmentsbond, agreements, leases, licenses, undertakings and debenture or other arrangements to which the Company or any evidence of its Subsidiaries is a partyfunded indebtedness, or to mortgaging, pledging or otherwise placing a material Encumbrance on any securities or assets of any Plan Investor Group Member; (B) any Contract in the nature of a letter of credit, bankers’ acceptance and similar facilities involving any Plan Investor Group Member as an account party or beneficiary; (C) any Contract in the nature of a capital or direct financing lease that is required by which IFRS to be treated as a long-term liability involving annual payments above $250,000 individually; and (D) any Contract containing material earn-out obligations or other contingent payment or contingent obligations for the Company deferred purchase price of property or services;
(ii) any material Contract involving any guaranty by a third party of its Subsidiariesany obligation for borrowed money or other material guaranty, their respective businesses performance or assets, completion bond or the Shares, are bound indemnity or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, surety arrangement;
(iii) any license, undertaking sublicense, development, collaboration or royalty agreement or other arrangement shall be considered “material” for purposes Contract relating to the use by any Plan Investor Group Member of this Section 4.15(a)(iany material third-party Intellectual Property (other than commercially available software or software subject to click-through or shrink-wrap agreements);
(iv) if it is any license, sublicense, development, collaboration or was royalty agreement or other Contract relating to the use of any Intellectual Property of any Plan Investor Group Member by any third party (i) entered into outside other than licenses granted to customers, resellers and distributors in the ordinary course of business consistent business) pursuant to which any Plan Investor Group Member receives annual payments above $250,000 individually;
(v) any Contract binding any Plan Investor Group Member in respect of a covenant not to compete with past practiceany Person, or Contracts (ii) other than Distribution Agreements and Contracts entered into in the ordinary course of business consistent business) in which any Plan Investor Group Member grants any exclusivity or preferential right of first refusal or right of first offer to any Person or otherwise creates an exclusive relationship binding on any Plan Investor Group Member with past practice and involves payments a Person, in each case, to the extent such Contract materially restricts or receipts in excess limits the activities of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by any Plan Investor Group Member or the Company ability of any Plan Investor Group Member to engage or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location area or to use from developing or disclose commercializing any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programspharmaceutical products;
(vi) Any agreement involving any Contract for the Company acquisition or disposition of any business, any merger, consolidation, plan or scheme of arrangement or reorganization, or acquisition or disposition of a material amount of stock or material portion of assets of any Person outside the ordinary course of business, or any material real property (whether by merger, sale of its Subsidiaries for stock, sale of assets or otherwise) to the development extent any Plan Investor Group Member has any remaining payment or indemnity obligations thereunder in excess of Software$250,000 individually, including any components in each case other than sales of Company Softwareinventory in the ordinary course of business;
(vii) Any joint venture, joint development any Contract that by its terms limits the payment of dividends or partnership agreement or similar agreement or arrangement involving other distributions by the Company or any of its SubsidiariesPlan Investor;
(viii) Any agreement of indemnification or guaranty involving the Company any Contract, other than a Distribution Agreement or any employment agreements, involving consideration in excess of its Subsidiaries$250,000 individually, and $500,000 in aggregate for Contracts with substantially the same customer, supplier or subject matter, and which, in each case, cannot be cancelled by the applicable Plan Investor Group Member (a) without penalty or (b) with less than ninety (90) days’ notice;
(ix) Any agreement Contracts with any of the Company’s independent contractors or its Subsidiariesconsultants which are not cancellable without material penalty or without more than ninety (90) days’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andnotice;
(x) Any agreement under which any Person has material Contract between any direct directors of any Plan Investor Group Member, any Senior Officers or indirect pecuniary interest (in both cases) any of their Affiliates, on the Company one hand, and such Plan Investor Group Member or any other Plan Investor Group Member, on the other hand;
(xi) any material Contract, involving consideration in excess of its $250,000 individually, and $500,000 in aggregate, that provides for any joint venture, partnership or similar arrangement or any Contract, involving consideration in excess of $250,000 individually, and $500,000 in aggregate, involving a sharing of revenues, profits, losses, costs or Liabilities between any Plan Investor Group Member, on the one hand, and any other Person, on the other hand excluding, in each case, (A) Distribution Agreements, (B) Contracts among Plan Investor Group Members which are directly or indirectly wholly owned by the Plan Investor and (C) any Contract that would be covered by this clause (x) solely by virtue of an obligation to pay customary royalties on account of product sales;
(xii) any “single source” supply Contract pursuant to which goods or materials that are material assetsto the Plan Investor Business are supplied to any Plan Investor Group Member from an exclusive source which source cannot be replaced without a material increase in cost within ninety (90) days of termination of such Contract; or
(xiii) any material Contract with any Governmental Entity outside of the ordinary course of business.
(b) The contracts required to be listed Company either has been supplied with, or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer been given access to, a true, correct and complete copy of all written Plan Investor Material Contracts (and where oral, or a written summary description of such all oral Plan Investor Material Contracts) together with all amendments, modifications and assignments thereof. Except as has not had and would not reasonably be expected to have a Plan Investor Material Adverse Effect and except as set forth in the Plan, each Plan Investor Material Contract (assuming due power and authority of, and due execution and delivery by, the other party or parties thereto) is in full force and effect and is valid, binding and enforceable against the applicable Plan Investor Group Member and, to the Plan Investor’s Knowledge, the other parties thereto, in accordance with their respective terms (except as may be limited by bankruptcy, insolvency, moratorium or other similar laws affecting creditors rights).
(c) Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Plan Investor Material Adverse EffectEffect or except as set forth on Section 5.8 of the Plan Investor Disclosure Schedule, (i) each within the one-year period preceding the date of this Agreement, no Plan Investor Group Member has violated or breached, or committed any default in any respect under, any Plan Investor Material Contract that remains uncured as of the Contracts is in full force date hereof, and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither to the Company nor any of its Subsidiaries is in default of its obligations under any Plan Investor’s Knowledge, as of the Contractsdate of this Agreement, and no eventother Person has violated or breached, occurrenceor committed any default in any respect under, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any Plan Investor Material Contract that remains uncured as of the Contracts, date hereof; and (iii) since as of the Financial Datedate of this Agreement, no waiver event has been granted by Seller occurred and is continuing through any Plan Investor Group Member’s actions or by the Company to inactions, as applicable, that will result in a violation or breach in any other party under respect of any of the Contractsprovisions of any Plan Investor Material Contract.
Appears in 1 contract
Sources: Plan Funding Agreement (Novelion Therapeutics Inc.)
Contracts and Commitments. (a) Schedule 4.15 of the Company Disclosure Schedule contains Terradatum is not a list (and. where oral, a summary description) ofparty or subject to:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company 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 thirty (30) days' notice or less without penalty or obligation to make payments related to such termination, other than (A) (in the case of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, employees other than executive officers) such severance agreements as are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into not different from standard arrangements offered to employees generally in the ordinary course of business consistent with Terradatum's past practice practices, a description of which is set forth in the Terradatum Disclosure Schedule and involves payments (B) such agreements as may be imposed or receipts in excess of Fifty Thousand Dollars ($50,000)implied by law;
(ii) Any Real Property Lease entered into plans, contracts or arrangements, written or oral, which collectively require aggregate payments by Terradatum in excess of $10,000 for bonuses, pensions, deferred compensation, severance pay or benefits, retirement payments, profit-sharing, or the Company or any of its Subsidiarieslike;
(iii) All employment agreementsAny joint marketing, consulting agreements and executive compensation plans affecting any persons employed joint development or retained by the Company joint venture contract or arrangement or any other agreement which has involved or is expected to involve a sharing of its Subsidiariesprofits with other persons;
(iv) Any existing OEM agreement, distribution agreement, volume purchase agreement, or other similar agreement in which the annual amount involved in 1998 exceeded, or is expected to exceed in 1999 or any subsequent year, $10,000 or pursuant to which Terradatum 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 Terradatum is required to make on an annual basis exceeds $10,000;
(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 Merger Agreement or any Terradatum Ancillary Agreement, the closing of the Merger, or the consummation of the transactions contemplated hereby or thereby;
(vii) Except for trade indebtedness incurred in the ordinary course of business, any instrument evidencing or related in any way to indebtedness in excess of $10,000 incurred in the acquisition of companies or other entities or indebtedness in excess of $10,000 for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, guarantee, indemnification or otherwise;
(viii) Any license agreement, either as licensor or licensee;
(ix) Any contract containing covenants limiting the purporting to limit Terradatum's freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location area or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andthird party;
(x) Any agreement under agreement, contract or commitment relating to capital expenditures and involving future obligations in excess of $10,000; or
(xi) Any other agreement, contract or commitment which any Person has any direct or indirect pecuniary interest in the Company or any of its is material assetsto Terradatum's Business.
(b) The contracts required to be To the Knowledge of Terradatum and the Members, each agreement, contract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license and commitment listed or described on Schedule 4.15(a) of in the Company Terradatum Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a trueis valid and binding on Terradatum, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect effect, and all payments neither Terradatum, nor to the knowledge of Terradatum and the Members, any other amounts required to be paid by Sellerparty thereto, the Company has breached any material provision of, or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default under the terms of, any such agreement, contract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license or commitment.
(c) None of the six largest customers of Terradatum during the twelve month period ended July 31, 1999 (determined on the basis of both revenues and bookings during such period) has reduced or terminated, or has notified Terradatum in writing that it intends to materially reduce or terminate, the amount of its obligations under business with Terradatum.
(d) To the knowledge of Terradatum and the Members, there is no agreement, judgment, injunction, order or decree binding upon Terradatum which has or could reasonably be expected to have the effect of prohibiting or materially impairing any material current business practice of the ContractsTerradatum, and no event, occurrence, condition or act which, with the giving any acquisition of notice, the lapse of time material property by Terradatum or the happening conduct of any further condition could become a default business by the Company Terradatum as currently conducted or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted as proposed to be conducted by Seller or by the Company to any other party under any of the ContractsTerradatum.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 of SCHEDULE 3.14 lists the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
(i) All material contracts, commitments, following agreements, leaseswhether oral or written, licenses, undertakings and other arrangements to which the Company or any of its Subsidiaries Enterprise is a party, or by which the Company or any of its Subsidiariesare currently in effect, their respective businesses or assets, or the Shares, are bound or affected or and which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was relate to Transferred Assets: (i) entered into outside the ordinary course of business consistent collective bargaining agreement or contract with past practice, or any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan; (iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal; (iv) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person; (v) confidentiality agreement; (vi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the Transferred Assets; (vii) guaranty of any obligation for borrowed money or otherwise; (viii) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $10,000; (ix) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $10,000; (x) contract which prohibits Enterprise from freely engaging in business anywhere in the world; (xi) contract for the distribution of any of the products that comprise Transferred Assets; (xii) franchise agreement; (xiii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by Enterprise in connection with the Intellectual Property Rights related to the Transferred Assets; (xiv) other agreement which is either material to the Transferred Assets or was not entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsbusiness.
(b) The contracts Enterprise has performed all obligations required to be listed performed by it in connection with the contracts or described on Schedule 4.15(acommitments required to be disclosed in SCHEDULE 3.14 and is not in receipt of any claim of default under any contract or commitment required to be disclosed under such schedule; Enterprise has no present expectation or intention of not fully performing any material obligation pursuant to any contract or commitment required to be disclosed under such caption; and Enterprise has no knowledge of any breach or anticipated breach by any other party to any contract or commitment required to be disclosed under such caption.
(c) Prior to the date of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller Agreement, SSI has delivered or made available to Acquirer been supplied with a true, correct and complete copy of all each written Contracts (contract or commitment, and where oral, a written summary description of such each oral Contracts) contract or commitment, set forth on SCHEDULE 3.14 together with all amendments, modifications and assignments thereof. Except as would not have, individually waivers or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractschanges thereto.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 of Except as expressly contemplated by this Agreement or as set forth on the attached "CONTRACTS SCHEDULE," no Acquired Company Disclosure Schedule contains is a list (and. where party to or bound by any written or oral, a summary description) of:
(i) All material contractspension, commitmentsprofit 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 or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, leasesprograms, licenses, undertakings and policies or arrangements other than any such arrangements to which as are set forth in either the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, EMPLOYEES SCHEDULE or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000)BENEFIT PLANS SCHEDULE;
(ii) Any Real Property Lease entered into by the Company contract with any Affiliate or contract with any of its SubsidiariesContracted Nonprofit;
(iii) All contract for the employment agreementsof any officer, individual employee or other Person on a full-time, part-time, consulting agreements and executive or other basis providing annual compensation plans affecting any persons employed in excess of $50,000, other than at-will contracts without severance obligations, or retained by the Company contract relating to loans to officers, directors or any of its SubsidiariesAffiliates;
(iv) Any agreement containing covenants limiting contract under which the freedom Acquired Companies have advanced or loaned any other Person amounts in the aggregate exceeding $25,000, other than trade credit extended in the Ordinary Course of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possessionBusiness;
(v) Any license agreements involving agreement or indenture relating to borrowed money or other Indebtedness or the Company mortgaging, pledging or otherwise placing a Lien on any asset or group of its Subsidiaries (as licensor or licensee) assets of the Acquired Companies other than licenses for the use of off-the-shelf software programsPermitted Liens;
(vi) Any agreement involving the Company or guaranty of any of its Subsidiaries for the development of Software, including any components of Company Softwareobligation;
(vii) Any joint venturelease or agreement under which any Acquired Company is the lessee of or holds or operates any property, joint development real or partnership personal, owned by any other party, except for any lease or agreement for real or similar agreement or arrangement involving personal property under which the Company or any of its Subsidiariesaggregate annual payments do not exceed $150,000;
(viii) Any lease or agreement under which any Acquired Company is the lessor of indemnification or guaranty involving the Company permits any third party to hold or operate any of its Subsidiariesproperty, real or personal, owned or controlled by any Acquired Company;
(ix) Any agreement contract or group of related contracts (excluding purchase orders issued or received in the Ordinary Course of Business) with any the same party or group of affiliated parties the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment performance of any severance pay or payment upon the occurrence which involves consideration in excess of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and$1,000,000;
(x) Any assignment, license, indemnification, joint ownership or other agreement under which with respect to the intangible property (including, without limitation, any Person has Proprietary Rights) of material value of any direct Acquired Company or indirect pecuniary interest of any third party;
(xi) distribution or franchise agreement;
(xii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the Company or world;
(xiii) agreement relating to the subcontracting (other than to mentors) to another Person of any of the Acquired Companies' obligations under any agreement listed on the CONTRACTS SCHEDULE; or
(xiv) any other agreement which is material to its material assetsoperations and business prospects or involves a consideration in excess of $1,000,000 annually.
(b) The To the Company's knowledge, except as expressly contemplated by this Agreement or as set forth on the CONTRACTS SCHEDULE, no Contracted Nonprofit is a party to or bound by any written or oral contract relating to the provision of services to state, county, local or other governmental or quasi-governmental bodies (a "GOVERNMENT CONTRACT") for which a Contracted Nonprofit has also contracted with an Acquired Company to provide management or other services in support of such Government Contract.
(c) All of the contracts, agreements and instruments set forth on the CONTRACTS SCHEDULE, as well as all contracts and agreements (or purported contracts and agreements) involving consideration in excess of $250,000 annually (collectively, "OTHER CONTRACTS") are valid, binding and enforceable against the Acquired Companies (or, if applicable, and to the knowledge of the Company, a Contracted Nonprofit) and, to the knowledge of the Company, the other parties thereto, in accordance with their respective terms, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors' rights and as limited by general principles of equity that restrict the availability of equitable remedies. Each Acquired Company (and, if applicable, to the Company's knowledge, each Contracted Nonprofit) has performed all material obligations required to be listed performed by it and is not in material default under or described on Schedule 4.15(ain breach of nor in receipt of any claim of default or breach under any such contract or agreement (or purported contract or agreement) or instrument. 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 by any of the Company Disclosure Acquired Companies or, to the knowledge of the Company, any other party under any such contract or agreement (or purported contract or agreement) or instrument. Except as set forth on the CONTRACTS SCHEDULE, with respect to each contract, agreement, or instrument set forth on the Contracts Schedule are referred to as well as each Other Contract: (x) the acquisition of the stock and change in control of the Acquired Companies (as the case may be) as contemplated under this Agreement as will not result in a breach of or default under any such contract, agreement, or instrument, or otherwise cause such contract, agreement, or instrument to cease to be legal, valid, binding, enforceable and in full force and effect on identical terms following the “ContractsClosing; (y) no Seller Entity or Acquired Company has received written notice of the intention of any party to such contract, agreement, or instrument to cancel, terminate or renegotiate in any material respect any such contract, agreement or instrument; and (z) to the knowledge of the Company, there has not been any breach or anticipated breach by any other party to such contract, agreement or instrument.”
(d) The Seller has delivered or made available to Acquirer provided the Purchaser with a true, true and correct and complete copy of all written Contracts contracts which are disclosed on the CONTRACTS SCHEDULE (and where oralother than contracts for which an Acquired Company is not a party or bound), a written summary description of such oral Contracts) in each case together with all amendments, modifications waivers, or other changes thereto (all of which are disclosed on the CONTRACTS SCHEDULE). The CONTRACTS SCHEDULE contains an accurate and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each complete description of the Contracts is in full force and effect and all payments and other amounts required material terms of all oral contracts referred to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractstherein.
Appears in 1 contract
Sources: Stock Purchase Agreement (Magellan Health Services Inc)
Contracts and Commitments. (a) Set forth on the attached Schedule 4.15 4.09 is a list of all binding agreements or contracts (written or oral) of the following types to which any ▇▇▇▇▇▇▇’▇ Company Disclosure Schedule contains a list (and. where oral, a summary description) of:
is party or by which any ▇▇▇▇▇▇▇’▇ Company is bound: (i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements purchase agreements to which any completed business acquisition or divestiture by any ▇▇▇▇▇▇▇’▇ Companies within the Company or any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(iprevious two (2) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or years; (ii) collective bargaining agreements or contracts with any labor union; (iii) bonus, pension, profit sharing, retirement, severance or other forms of deferred compensation plan, other than as described in Section 4.13 or the schedules relating thereto; (iv) contracts for the employment of any officer, individual employee or other person on a full-time or consulting basis or contracts with any officer, employee or director (including confidentiality agreements, non-compete agreements); (v) sales representative or distributor agreements; (vi) agreements or indentures relating to the borrowing of money (including those related to the Indebtedness) or to mortgaging, pledging or otherwise placing a Lien on any portion of any ▇▇▇▇▇▇▇’▇ Company’s assets, other than Permitted Liens; (vii) guarantees of any obligation for borrowed money or other material guaranty; (viii) leases or agreements 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; (ix) leases or agreements 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; (x) contracts or group of related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and services has a selling price in excess of $50,000 (other than purchase orders entered into in the ordinary course of business consistent business); (xi) contracts or group of related contracts with past practice and involves payments the same party for the sale of products or receipts services under which the undelivered balance of such products or services has a sales price in excess of Fifty Thousand Dollars $50,000 ($50,000);
(ii) Any Real Property Lease other than purchase orders entered into in the ordinary course of business); (xii) contracts relating to the purchase by the any employee of any ▇▇▇▇▇▇▇’▇ Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom capital stock of the Company ▇▇▇▇▇▇▇’▇ Companies; (xiii) contracts or any of its Subsidiaries agreements related to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay bonuses or payment upon the occurrence of a “change in control” agreement incentives, to any employee of the Company ▇▇▇▇▇▇▇’▇ Companies in connection with the sale of any ▇▇▇▇▇▇▇’▇ Company; (xiv) all commitments from vendors to provide co-op allowances, volume allowances, defective product allowances or any other rebates or financial incentives in exchange for any ▇▇▇▇▇▇▇’▇ Company doing business with such vendor; or (xv) contracts continuing over a period of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
more than six (x6) Any agreement under which any Person has any direct or indirect pecuniary interest in months from the Company or date hereof not terminable by any of its material assetsthe ▇▇▇▇▇▇▇’▇ Companies on 30 days or less notice without monetary penalty.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer Buyer a true, true and correct and complete copy of all written Contracts contracts (and where oralor, in the case of an oral contract, a written summary description satisfactory to Buyer of such oral Contractsthe terms and conditions thereof) required to be disclosed on Schedule 4.09, together with all amendments, modifications and assignments thereof. Except as would not have, individually waivers or in the aggregate, a Company Material Adverse Effect, other changes thereto.
(ic) each Each of the Contracts ▇▇▇▇▇▇▇’▇ Companies has performed all material obligations required to be performed, and no ▇▇▇▇▇▇▇’▇ Company is in material default, under any contract required to be listed on Schedule 4.09.
(d) All of the contracts required to be disclosed on Schedule 4.09 are in full force and effect and all payments are legal, valid and other amounts required to be paid by Seller, the Company binding obligations of one or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any more of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contracts▇▇▇▇▇▇▇’▇ Companies.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 of the Company Disclosure Schedule contains Preview is not a list (and. where oral, a summary description) ofparty or subject to:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company 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 that is not terminable by it on two weeks' notice or less without penalty or obligation to make payments related to such termination, other than (A) (in the case of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, employees other than executive officers) such severance agreements as are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into not different from standard arrangements offered to employees generally in the ordinary course of business consistent with Preview's past practice practices, a description of which is set forth in the Preview Disclosure Schedule and involves payments (B) such agreements as may be imposed or receipts in excess of Fifty Thousand Dollars ($50,000)implied by law;
(ii) Any Real Property Lease entered into plans, contracts or arrangements, written or oral, which collectively require aggregate payments by Preview in excess of $25,000 for bonuses, pensions, deferred compensation, severance pay or benefits, retirement payments, profit-sharing, or the Company or any of its Subsidiarieslike;
(iii) All employment agreementsAny joint marketing, consulting agreements and executive compensation plans affecting any persons employed joint development or retained by the Company joint venture contract or arrangement or any other agreement that has involved or is expected to involve a sharing of its Subsidiariesprofits or royalties with other persons;
(iv) Any existing license agreement, OEM agreement, distribution agreement, volume purchase agreement, or other similar agreement pursuant to which Preview 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 Preview is required to make on an annual basis exceeds $25,000;
(vi) Any agreement, contract, mortgage, indenture, lease, instrument, license, franchise, permit, concession, arrangement, commitment or authorization that may be, by its terms, terminated or breached by reason of the execution of this Agreement or the Preview Merger Agreement, the closing of the Mergers, or the consummation of the transactions contemplated hereby or thereby;
(vii) Except for trade indebtedness incurred in the ordinary course of business, any instrument evidencing or related in any way to indebtedness in excess of $25,000 incurred in the acquisition of companies or other entities or indebtedness in excess of $25,000 for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, guarantee, indemnification or otherwise;
(viii) Any license agreement, either as licensor or licensee (excluding End-User Licenses);
(ix) Any contract containing covenants limiting the purporting to limit Preview's freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location area or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andthird party;
(x) Any agreement under which any Person has any direct agreement, contract or indirect pecuniary interest commitment relating to capital expenditures and involving future obligations in the Company excess of $25,000; or
(xi) Any other agreement, contract or any of its commitment that is material assetsto Preview.
(b) The contracts required to be Each agreement, contract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license and commitment listed or described on Schedule 4.15(a) of in the Company Preview Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct is valid and complete copy of all written Contracts (binding on Preview and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect effect, and all payments and neither Preview, nor to the knowledge of Preview any other amounts required to be paid by Sellerparty thereto, the Company has breached in any material respect any provision of, or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default in any material respect 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 Preview which has or could reasonably be expected to have the effect of its obligations under prohibiting or materially impairing any material current business practice of the ContractsPreview, and no event, occurrence, condition or act which, with the giving any acquisition of notice, the lapse of time material property by Preview or the happening conduct of any further condition could become a default business by the Company Preview as currently conducted or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company as proposed to any other party under any of the Contractsbe conducted.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Preview Systems Inc)
Contracts and Commitments. (a) Schedule 4.15 2.12(a) lists each of the Company Disclosure Schedule contains a list following contracts or agreements (and. where oral, a summary descriptionif any) ofof each of the Acquired Companies:
(i) All material contractsmanagement contracts with respect to the Properties, commitments, agreements, leases, licenses, undertakings and other arrangements management contracts with respect to which the Company golf course properties or any of its Subsidiaries is a party, or facilities owned by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000)third parties;
(ii) Any Real Property Lease entered into all material documents evidencing or creating indebtedness for borrowed money of the Acquired Companies with a remaining principal balance in excess of individually or in the aggregate or secured by the Company Properties and outstanding on the date of this Agreement which will not be retired or any of its Subsidiariesrepaid on or prior to the Closing Date ("Existing Debt");
(iii) All employment agreements, consulting partnership agreements and executive compensation plans affecting joint venture agreements to which any persons employed Acquired Company is a party (and having as another party any person who is not an Acquired Company) which requires a payment, or retained by the Company delivery of assets or any of its Subsidiariesservices;
(iv) Any agreement containing covenants limiting all Leases of Leased Properties and other real property leased by the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possessionCompanies;
(v) Any license except as set forth on Schedule 2.5, employment, severance or consulting agreements involving the Company with any director, officer or any of its Subsidiaries Acquired Companies Employee (as licensor or licenseehereinafter defined) other than licenses for the use requiring an annual payment of off-the-shelf software programscash compensation in excess of individually;
(vi) Any agreement involving agreements granting to any third party a first-refusal, first-offer or other right to purchase or acquire any of the Company Properties or any of its Subsidiaries for the development of Software, including any components of Company SoftwareAcquired Shares;
(vii) Any joint venture, joint development agreements materially limiting or partnership agreement restricting the ability of any Acquired Company to enter into or similar agreement engage in any geographic area or arrangement involving the Company or any line of its Subsidiaries;business; and
(viii) Any agreement of indemnification agreements that will not be terminated on or guaranty involving before the Closing between (1) any Acquired Company and any Seller or its Affiliates (as hereinafter defined), or (2) any of Seller or its Subsidiaries;
Affiliates (ixexcept for any Acquired Company) Any agreement with and a third party that commit any one or more of the Company’s or its Subsidiaries’ current or former officersAcquired Companies to pay, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsaggregate, more than .
(b) The contracts required to be listed or described on Schedule 4.15(a) True and complete copies of the Company Disclosure Schedule are referred contracts and agreements disclosed pursuant to in this Agreement as the “Contracts.” Seller has delivered or Section 2.12(a) hereof have been made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereofthe Buyer. Except as disclosed on Schedule 2.12(b) or as would not have, individually or in the aggregate, have a Company Material Adverse Effect, Effect (i) each of contract and agreement disclosed pursuant to Section 2.12(a) hereof is valid and binding on the Contracts Acquired Company party thereto and, to the Sellers' Knowledge, on the other party or other parties thereto, and is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of in accordance with its Subsidiaries, which have become due, have been paidrespective terms, (ii) neither upon consummation of the Company nor any transactions contemplated by this Agreement, each such contract and agreement shall continue in full force and effect in accordance with its respective terms without penalty, acceleration of its Subsidiaries payment or other adverse consequence, (iii) none of the Acquired Companies is in breach of, or default of its obligations under under, any of the Contractssuch contract or agreement, and no eventevent exists that, occurrence, condition or act which, with but for the giving of noticenotice or passage of time, the lapse of time would result in such a breach or the happening of any further condition could become a default by the Acquired Company or its Subsidiaries under any of the Contractsparty thereto, and (iiiiv) since to the Financial DateSellers' Knowledge, no waiver has been granted by Seller other party to any such contract or agreement is in breach thereof or default thereunder, and no event exists that, but for the giving of notice or passage or time, would result in such a breach or default by the Company to any other party under any of thereto. Certain other contracts and agreements concerning the ContractsProperties and the Acquired Companies have been provided to the Buyer in the Review Room (as hereinafter defined).
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 4.7(a) sets forth a complete list of the Contracts to which the Company Disclosure Schedule contains and its Subsidiary are a list (and. where oralparty, a summary description) of:
are bound by, or receive benefits under which are (i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements Contracts not made in the ordinary course of business (including any Contracts pursuant to which the Company or its Subsidiary received funding from a Seller or an Affiliate of a Seller); (ii) any Contract relating to the borrowing of money by it or the guarantee by it of any such obligation; (iii) a Contract that by its Subsidiaries terms either requires the Company or its Subsidiary 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); (iv) any joint venture or partnership agreement; (v) any agreement that grants any right of first refusal or right of first offer or similar right to third parties or that limits or purports to limit the ability of the Company or its Subsidiary in any material respect to pledge, sell, transfer or otherwise dispose of any material amount of assets or business; (vi) any Contract providing for any material future payments that are conditioned, in whole or in part, on a change of control with respect to the Company or its Subsidiary; (vii) any material Insurance Contract; (viii) any material agency, broker, sale representative, marketing or similar Contract; (ix) any Contract that contains a “most favored nation” clause obligating the Company or its Subsidiary to change the material terms and conditions of such Contract based on better terms or conditions provided to other parties in similar Contracts; (x) any Contract relating to any merger or business combination concerning the Company or its Subsidiary or the acquisition or disposition of any assets or any Person during the last five years; (xi) any Contract with any director, officer, employee or Affiliate of the Company or its Subsidiary; and (xii) any currently effective Contract with any customer set forth in Schedule 4.24, any material Contract of the Company or its Subsidiary based on aggregate expenditures and any other Contract which is otherwise material to the Company or its Subsidiary (the Contracts of the type covered in clauses (i) through (xii), the “Material Contracts”).
(b) Except as set forth in Schedule 4.7(b), (i) each Material Contract is valid and binding on the Company and its Subsidiary and in full force and effect and is valid and binding on the other parties thereto; (ii) the Company and its Subsidiary (and, to the Knowledge of the Company, any counterparty thereto) have each performed in all respects all obligations required to be performed by them to date under each Material Contract. Neither the Company nor its Subsidiary is in material breach or default under any order, writ, judgment, decree, Contract or other instrument to which it is a party, party or by which the Company it or any of its Subsidiariesassets or properties is bound, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) whether entered into in the ordinary course of business consistent or otherwise and whether written or oral, and there has not occurred any event that, with past practice and involves payments the lapse of time or receipts in excess giving of Fifty Thousand Dollars notice or both, would constitute such a material breach or default. The Company has not received notice of any cancellation, material breach of, or default under ($50,000);
(ii) Any Real Property Lease entered into by the Company or any condition which, with the passage of its Subsidiaries;
(iii) All employment agreementstime or the giving of notice, consulting agreements and executive compensation plans affecting would cause a material breach of, or default under), any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsMaterial Contract.
(bc) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a A true, correct and complete copy of all written Contracts each Material Contract has been delivered to Buyer prior to the date of this Agreement.
(and where oral, a written summary description of such oral Contractsd) together with all amendments, modifications and assignments thereof. Except as would not haveset forth in Schedule 4.7(d), individually or in the aggregate, a Company Material Adverse Effect, (i) each enforceability after the Closing by Buyer of the Material Contracts is shall not be affected in full force any material respect by the execution and effect delivery of this Agreement and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any consummation of the Contractstransactions contemplated hereby, and no eventnotice to, occurrenceor consent, condition approval or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to is required from any other party under any of the Contractsto a Material Contract.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 Except (x) as set forth on the attached Contracts Schedule, (y) for Government Contracts and Government Bids, which are the subject of Section 5.16, and (z) for agreements entered into by the Company or its Subsidiaries after the date hereof not in violation of Section 7.01, neither the Company nor its Subsidiaries is party to any: (i) collective bargaining agreement; (ii) written bonus, pension, employee profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 5.13 or the Disclosure Schedules relating thereto; (iii) equity purchase, option or similar plan; (iv) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis providing for base salary compensation in excess of $300,000 per annum; (v) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien, except for Permitted Liens, on any material portion of the assets of the Company Disclosure Schedule contains and its Subsidiaries; (vi) guaranty of any obligation for borrowed money or other material guaranty; (vii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $1,000,000; (viii) lease or agreement 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 $1,000,000; (ix) contract or group of related contracts with the same party for the purchase of products or services which provided for payments by the Company or its Subsidiaries in excess of $5,000,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet; (x) agreements relating to any completed material business acquisition by the Company or its Subsidiaries within the last two (2) years; (xi) material license or royalty agreement under which (A) the Company or any of its Subsidiaries is granted a list license to the Intellectual Property of any Person (and. where oralother than licenses for commercially available, a summary descriptionoff-the-shelf software), but only to the extent such license is material to the business of the Company and its Subsidiaries, or (B) of:
(i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to under which the Company or any of its Subsidiaries is a party, has granted to any Person any right or by which the interest in any material Company or Intellectual Property (other than any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into non-exclusive licenses granted by the Company or any of its Subsidiaries;
Subsidiaries in the Ordinary Course of Business); provided, however, that the foregoing (iiiA) All employment agreements, consulting agreements and executive compensation plans affecting (B) shall not be deemed to require disclosure of any persons employed or retained by agreement for which the Company license is not the primary purpose of such agreement or any agreements for which fees or payments do not exceed $1,000,000 during the trailing twelve month period ending on the date of its Subsidiaries;
the Latest Balance Sheet; (ivxii) Any contract or agreement containing with any Affiliate; (xiii) agreement that contains covenants materially limiting the freedom of the Company or any of its Subsidiaries Subsidiary to compete in any line business, industry or geographic area or which contains pricing protection or “most favored nation” provisions (other than Teaming Agreements); (xiv) material contract with minimum purchase commitments; (xv) distribution, dealership or franchise agreement (excluding purchase orders issued or received in the Ordinary Course of business Business) relating to the distribution or marketing of its products or services; or (xvi) settlement, conciliation or similar agreement with any Governmental Entity or pursuant to which the Company will be required after the execution date of this Agreement to pay consideration in excess of $500,000.
(b) Except as set forth on the Contracts Schedule, true and correct copies of all written contracts which are referred to on the Contracts Schedule have been made available to the Purchaser and Merger Sub, in each case together with all amendments thereto. The Contracts Schedule contains an accurate and complete description of all material terms of all oral contracts referred to therein.
(c) Neither the Company nor its Subsidiaries is in default in any geographic location material respect under any contract listed on the Contracts Schedule, and each such contract is valid, binding, enforceable and in full force and effect with respect to the Company, and, to the knowledge of the Company, with respect to any other party to such contract, in each case, 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. To the Company’s knowledge, no event has occurred that with the passage of time or to use the giving of notice or disclose any information both would result in its possession;
(v) Any license agreements involving a material default or breach by the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of such contract, agreement, settlement or instrument required to be listed on the ContractsContracts Schedule. Except as set forth on the Contracts Schedule, with respect to each contract, agreement or instrument required to be set forth on the Contracts Schedule, to the Company’s knowledge, there is not any ongoing material breach by any other party to such contract, agreement or instrument.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 4.10(a), as of the date hereof, no Acquired Company Disclosure Schedule contains a list (and. where oral, a summary description) ofis party to or bound by any:
(i) All material contractsCompany IP Agreements, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company or any than licenses for an annual fee of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars (less than $50,000)100,000;
(ii) Any Real Property Lease entered into by the Company or any of its SubsidiariesCBA;
(iii) All employment agreementsContract relating to or evidencing Indebtedness or to mortgaging, consulting agreements and executive compensation plans affecting pledging or otherwise placing a Lien on any persons employed Acquired Company’s assets or retained by the Company that are a mortgage, indenture, guaranty, loan or any of its Subsidiariescredit agreement or security agreement;
(iv) Any agreement containing covenants limiting the freedom guaranty of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possessionobligation for borrowed money;
(v) Any license agreements involving lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, for which the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programsannual rental exceeds $250,000;
(vi) Any lease or agreement involving under which it is lessee of, or holds or operates any personal property owned by any other party, for which the Company or any of its Subsidiaries for the development of Software, including any components of Company Softwareannual rental exceeds $250,000;
(vii) Any joint venture, joint development stock or partnership asset purchase agreement or similar agreement definitive Contracts relating to the acquisition or arrangement involving disposition of any capital stock, business or product line, material assets or properties of any Person entered into at any time during the last three (3) years or that impose any material continuing obligations or Liabilities on any Acquired Company (including any obligation with respect to any unpaid “earn out”, contingent purchase price or any of its Subsidiariessimilar unpaid contingent payment obligation);
(viii) Any agreement Contracts limiting the freedom of indemnification any Acquired Company to engage in any line of business, acquire any entity, compete with any Person or guaranty involving the Company in any market or geographical area or hire or solicit any of its SubsidiariesPerson;
(ix) Any agreement with joint venture and partnership Contracts and any of similar Contracts that involve co-investment between any Acquired Company, on the Company’s or its Subsidiaries’ current or former officersone hand, directors or employees providing for and any third party, on the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; andother hand;
(x) Any agreement Contract with any officer, employee or individual consultant or other person on a full-time or consulting basis (A) providing for fixed compensation in excess of $150,000 per annum or (B) providing for change in control, retention, transaction bonus or similar arrangements;
(xi) Contract with any Governmental Body;
(xii) contract or group of related contracts with the same party for (a) the purchase by the Acquired Companies of products or services or (b) sale by the Acquired Companies of products or services, in each case under which any Person the undelivered balance of such products and services has any direct or indirect pecuniary interest a selling price in excess of $250,000 (other than purchase orders entered into in the Ordinary Course of Business).
(xiii) Contracts (i) with any Significant Customer or involving annual revenue to the Acquired Companies in excess of $1,000,000 per year or (ii) with any Significant Vendor or involving purchases of goods and/or services by the Acquired Companies in excess of $500,000 per year;
(xiv) Contracts involving capital expenditure obligations of the Acquired Companies in excess of $250,000;
(xv) Contracts with Significant Vendors that contain “take-or-pay,” minimum purchase, or similar payment obligations or Contracts that (A) grant to any third party any “most favored nation” status, (B) provide for any exclusive license, supply or distribution arrangement or other exclusive rights or (C) grant any rights of first refusal, rights of first offer, rights of first negotiation or similar rights;
(xvi) Contracts that include any requirement that any Acquired Company provide indemnification to any other Person, other than agreements entered into in the Ordinary Course of Business consistent with past practice;
(xvii) Contracts relating to the settlement, conciliation or similar agreement relating to the resolution, settlement or disposition of any of its material assetsLitigation or threatened Litigation, in each case, to the extent such Contracts contain ongoing obligations;
(xviii) Contracts relating to Affiliated Transactions;
(xix) any Quality Agreements; or
(xx) binding commitments or undertakings to enter into any Contract described in the foregoing clauses (i) through (xix).
(b) The contracts required Buyer has been given access to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oralwhich are referred to on Schedule 4.10(a), a written summary description of such oral Contracts) together with all material amendments, modifications and assignments thereof. Except as would not havewaivers or other changes thereto.
(c) No material breach or material default by any Acquired Company, individually or, to the Company’s knowledge, the other party or in the aggregateparties thereto, exists under any contract listed on Schedule 4.10(a) (each, a “Material Contract” and, collectively, the “Material Contracts”). No event has occurred that with notice or lapse of time or both would constitute such a material breach or material default thereunder by any Acquired Company or, to the Company’s knowledge, any other party thereto. No Acquired Company has received any written, or to the Company’s knowledge, oral communication, alleging material noncompliance with, material deficiency under, notice of material breach or material default or event that with notice or lapse of time or both would constitute a material breach or material default by any Acquired Company under any Material Adverse EffectContract, (i) each including any quality-related, regulatory-related or performance-related nonconformance. No Acquired Company has received any written, or to the Company’s knowledge, oral communication, that any counterparty to any Material Contract intends or has threatened to terminate, cancel, suspend, audit, re-audit, transition business away from, adversely modify, refuse renewal of or revoke any Material Contract. Each of the Material Contracts is in full force and effect and all payments legal, valid and other amounts required to be paid by Sellerbinding on, and enforceable against, the Company or any one of its Subsidiaries, which have become dueas applicable, have been paidand, (ii) neither to the Company nor any of its Subsidiaries is in default of its obligations under any of Company’s knowledge, on and against the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any or parties thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Laws of the Contractsgeneral applicability relating to or affecting creditors’ rights and to general equity principles.
Appears in 1 contract
Sources: Securities Purchase Agreement (Perimeter Solutions, Inc.)
Contracts and Commitments. (a) Schedule 4.15 Neither the Company nor any Company Subsidiary is, as of the Company Disclosure Schedule contains a list (and. where oralAgreement Date, a summary description) of:party to (collectively, the “Company Material Contracts”):
(i) All material contractsany collective bargaining agreement or other Contract with any Union;
(ii) any Loan Amendment, commitments, agreements, leases, licenses, undertakings Material Loan Agreement and other arrangements Contract or indenture or similar instrument relating to Indebtedness (without regard to clause (2) in the last sentence of the definition thereof) of the Company or any Company Subsidiary or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any Company Subsidiary;
(iii) any guaranty by the Company or any Company Subsidiary of any obligation for Indebtedness (without regard to clause (2) in the last sentence of the definition thereof) or other material guaranty by the Company or any Company Subsidiary;
(iv) any Company Lease;
(v) any individual lease or other Contract under which the Company or any of its Subsidiaries Company Subsidiary is a lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $1,000,000;
(vi) any individual lease or by other Contract under which the Company or any Company Subsidiary is lessor of its Subsidiaries, their respective businesses or assets, permits any third party to hold or operate any personal property for which the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or annual rental exceeds $1,000,000;
(vii) other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) than purchase orders entered into in the ordinary course of business consistent with past practice and involves payments practice, any Contract with any Company Material Customer or receipts in excess of Fifty Thousand Dollars ($50,000)Company Material Supplier;
(iiviii) Any Real any material Intellectual Property Lease entered into Agreements, other than (A) Non-Negotiated Vendor Contracts; (B) Contracts for the non-exclusive license of Intellectual Property granted by the Company or any Company Subsidiary to customers in the ordinary course of its Subsidiariesbusiness; and (C) Open Source Licenses;
(iiiix) All employment agreementsany Contract that purports to limit the ability of the Company or any Company Subsidiary from competing with any Person, consulting operating or doing business in any location, market or line of business (other than, for the avoidance of doubt, any field of use or geographical limitations under the Company’s or any Company Subsidiary’s ordinary course license agreements and executive compensation plans affecting that do not otherwise restrict competition);
(x) any persons employed or retained Contract providing for indemnification by the Company or any Company Subsidiary of its Subsidiariesany Person, except for any such Contracts with reasonable or customary limitations liability (including exclusions therefrom) that are entered into in the ordinary course of business consistent with past practice;
(ivxi) Any agreement containing covenants limiting any Contract that (A) contains any “most favored nation” or similar provision in favor of any other Person, or (B) grants to any other Person any exclusive rights, rights of first refusal, rights of first negotiation or similar rights;
(xii) any Contract that would require the freedom disposition of any material assets or line of business of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possessionCompany Subsidiary;
(vxiii) Any license agreements involving any joint venture, strategic alliance and similar Contract;
(xiv) any Contract entered into in the last two (2) years for the settlement of any Action for which the Company or any of its Subsidiaries (as licensor Company Subsidiary has any ongoing liability or licensee) other than licenses for the use of off-the-shelf software programsobligation;
(vixv) Any agreement involving any Contract requiring or providing for any capital expenditure by the Company or any Company Subsidiary in excess of its Subsidiaries for the development of Software, including any components of Company Software$1,000,000;
(viixvi) Any joint ventureany Contract relating to the acquisition or disposition (whether by merger, joint development sale of stock, sale of assets or partnership agreement or similar agreement or arrangement involving otherwise) by the Company or any Company Subsidiary of its Subsidiaries;any Person or material line of business entered into during the past two (2) years or the future acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) of any Person or material line of business; and
(viiixvii) Any agreement of indemnification any Contract, excluding Company Leases, that requires (A) the payment or guaranty involving delivery by the Company or any Company Subsidiary of its Subsidiaries;cash or other consideration in an amount or having a value in excess of $1,000,000 in the aggregate per Contract or series of Contracts with the same party, or (B) the performance of services by the Company or any Company Subsidiary having a value in excess of $1,000,000 in the aggregate per Contract or series of Contracts with the same party.
(ixb) Any agreement with Each Company Material Contract is in full force and effect, and is the legal, valid and binding obligation of either the Company or any Company Subsidiary which is party thereto, and, to the Knowledge of the Company’s , of the other parties thereto, enforceable against each of them in accordance with its terms, subject to any Enforceability Exceptions. Neither the Company nor any Company Subsidiary is in material breach of, or its Subsidiaries’ current material default under any Company Material Contract, and, to the Knowledge of the Company, the other party to each Company Material Contract is not in material default thereunder. No event has occurred that with the lapse of time or former officers, directors the giving of notice or employees providing for both would constitute a material breach or default on the payment of any severance pay or payment upon the occurrence of a “change in control” agreement part of the Company or any Company Subsidiary or, to the Knowledge of its Subsidiariesthe Company, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement any other party under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be Contract listed or described on Schedule 4.15(a4.9(a) of the Company Disclosure Schedule are referred Schedules. No party to any Company Material Contract has given the Company or any Company Subsidiary written notice of its intent to terminate or materially modify or amend the terms and conditions of any Company Material Contract (except with respect to the Loan Amendments to the Material Loan Agreements entered into on the Agreement Date), and no party has given the Company or any Company Subsidiary written notice of any material claim or dispute with respect to any Company Material Contract or written notice claiming that any other party is in this Agreement as the “Contracts.” Seller breach of, or default under, any Company Material Contract. The Company has delivered or made available to Acquirer a Otonomo true, correct and complete copy copies of all written Contracts (and where oraleach Company Material Contract, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereofor supplements thereto. Except as would not haveUpon consummation of the transactions contemplated by this Agreement, individually or in the aggregate, a each Company Material Adverse Effect, (i) each of the Contracts is Contract shall remain in full force and effect at the Effective Time without any loss of benefits thereunder and all payments and other amounts required without the need to be paid obtain the consent of any party thereto with respect to the transactions contemplated by Seller, the Company this Agreement or any other Transaction Agreement, in each case except for the expiration, termination or cancellation of any Company Material Contract pursuant to its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any terms as of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Agreement Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contracts.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 of Except as set forth on the attached Contracts Schedule, the Company Disclosure Schedule contains a list (and. where oral, a summary description) ofis not party to any written:
(i) All agreement relating to any completed material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which business acquisition by the Company or any of its Subsidiaries is a party, or by which Subsidiary within the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000)last three years;
(ii) Any Real Property Lease entered into agreement that contemplates or involves the payment or delivery of cash or other consideration by or to the Company after the date of this Agreement in an amount or any having a value in excess of its Subsidiaries$10,000 individually or $50,000 in the aggregate;
(iii) All employment agreementsagreement relating to the acquisition, consulting agreements and executive compensation plans affecting transfer, sharing or license of any persons employed or retained by the Company or any of its SubsidiariesPatent;
(iv) Any collective bargaining agreement containing covenants limiting or contract with any labor union;
(v) written bonus, pension, profit sharing, retirement or other form of deferred compensation plan;
(vi) employee benefit plan agreement;
(vii) stock purchase, stock option or similar plan;
(viii) contract for the freedom employment of, or granting of severance to, any officer, individual employee or other Person;
(ix) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any portion of the Company’s assets or any Company Patent;
(x) guaranty of any obligation for borrowed money;
(xi) lease or agreement under which it is lessee of, or holds or operates any personal or real property owned by any other party;
(xii) instrument evidencing ownership of real property;
(xiii) contract relating to any joint venture, partnership or similar arrangement;
(xiv) contract that by its terms contains exclusivity or non-competition restrictions that restrict the ability of the Company to compete in any geographical area or business;
(xv) contract which provides for indemnification by the Company of any director or officer of the Company or any of its Subsidiaries to compete in Shareholder, or for any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment Affiliate of any severance pay director or payment upon the occurrence of a “change in control” agreement officer of the Company or any of its Subsidiaries, whether such payments are payable upon a termination Shareholder; or
(xvi) other contract that is voluntary not terminable without penalty upon not more than 90 days notice and that involved aggregate consideration in excess of $10,000 in any year or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in excess of $50,000 over the Company or any remaining term of its material assets.such agreement;
(b) The contracts required Parent and Merger Sub have been given access to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, true and correct and complete copy of all written contracts which are referred to on the Contracts (and where oralSchedule, a written summary description of such oral Contracts) together with all material amendments, modifications and assignments thereof. Except as would waivers or other changes thereto.
(c) As of the date hereof the Company is not have, individually or in material default under any contract listed on the aggregateContracts Schedule (each, a Company “Material Adverse EffectContract” and, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Sellercollectively, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the “Material Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contracts”).
Appears in 1 contract
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement or as set forth on the attached "Contracts Schedule" or the attached "Employee ------------------ -------- Benefits Schedule," neither the Company nor any Subsidiary is a party to or ----------------- bound by any written or oral:
(a) Schedule 4.15 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 or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(b) contract for the employment of any officer, individual employee or other Person on a full-time, part-time, consulting or other basis providing annual compensation in excess of $75,000 or contract relating to loans to officers, directors or Affiliates;
(c) contract under which the Company or Subsidiary has advanced or loaned any other Person amounts in the aggregate exceeding $100,000;
(d) agreement or indenture relating to borrowed money or other Debt or the mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the Company Disclosure Schedule contains and its Subsidiaries;
(e) guarantee of any obligation in excess of $100,000 (other than by the Company of a list Wholly-Owned Subsidiary's debts or a guarantee by a Subsidiary of the Company's debts or another Subsidiary's debts);
(and. where oralf) lease or agreement under which the Company or any Subsidiary is lessee of or holds or operates any property, a summary descriptionreal 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 $100,000;
(g) of:lease or agreement under which the Company or any Subsidiary is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company or any Subsidiary;
(h) assignment, license, indemnification or agreement with respect to any intangible property (including, without limitation, any Intellectual Property);
(i) warranty agreement with respect to its services rendered or its products sold or leased;
(j) agreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(k) sales, distribution or franchise agreement;
(l) contract, agreement or other arrangement with any officer, director, stockholder, employee or Affiliate, or any Affiliate of any officer, director, stockholder or employee;
(m) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(n) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in excess of $200,000; or agreement with a term of more than six months which is not terminable by the Company or any Subsidiary upon less than 30 days notice without penalty.
(ii) All material of the contracts, commitmentsagreements and instruments set forth on the Contracts Schedule are valid, agreementsbinding and enforceable in accordance with their respective terms in all material respects. The Company and each Subsidiary have performed all material obligations required to be performed by them and are not in default under or in breach of nor in receipt of any claim of default or breach under any material contract, leases, licenses, undertakings and other arrangements agreement or instrument to which the Company or any Subsidiary is subject; no event has occurred which with the passage of its Subsidiaries is time or the giving of notice or both would result in a partydefault, breach or event of noncompliance by the Company or any Subsidiary under any material contract, agreement or instrument to which the Company or any Subsidiary is subject and; neither the Company nor any Subsidiary has any present expectation or intention of its Subsidiaries, their respective businesses not fully performing all such obligations; neither the Company nor any Subsidiary has knowledge of any breach or assets, or anticipated breach by the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any other parties to any material contract, commitment, agreement, lease, license, undertaking instrument or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if commitment to which it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;a party.
(iii) All employment agreementsThe Purchaser's special counsel has been supplied with a true and correct copy of each of the written instruments, consulting plans, contracts and agreements and executive compensation plans affecting any persons employed or retained by the Company or any an accurate description of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom each of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license oral arrangements, contracts and agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as on the “Contracts.” Seller has delivered or made available to Acquirer a trueContracts Schedule, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually waivers or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractschanges thereto.
Appears in 1 contract
Contracts and Commitments. (aExcept as set forth on SCHEDULE 3.1(H) Schedule 4.15 of hereto, neither the Company Disclosure Schedule contains Seller nor Cephalon is a list (and. where party to any written or oral, a summary description) of:
(i) All material contractsagreement, commitmentscontract or commitment for the employment of any person, agreementsincluding any consultant, leases, licenses, undertakings and other arrangements to which employed at the Company or any of its Subsidiaries is a party, or by which Facilities in connection with the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation conduct of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000)Seller's business;
(ii) Any Real Property Lease entered into by agreement, contract, commitment or arrangement with any labor union or other representative of employees relating to the Company Facilities or any of its Subsidiariesthe Purchased Assets;
(iii) All employment agreements, consulting loan agreements and executive compensation plans affecting other debt instruments that in any persons employed or retained by the Company or manner encumber any of its Subsidiariesthe Purchased Assets;
(iv) Any agreement containing covenants limiting agreement, contract or commitment relating to the freedom Facilities or the Purchased Assets not otherwise required to be listed on SCHEDULE 3.1(H) hereto or not required to be listed by virtue of another provision of this SECTION 3.1(H), and continuing over a period of more than six months from the Company date hereof or any of its Subsidiaries exceeding with respect to compete the Facilities or the Purchased Assets, $10,000 in any line of business or in any geographic location or to use or disclose any information in its possessionvalue;
(v) Any license agreements involving conditional sale agreement or lease under which the Company Seller is either purchaser, lessor or lessee relating to the Purchased Assets or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programsproperty at which Purchased Assets are located;
(vi) Any commitment or agreement involving for any capital expenditure or leasehold improvement in excess of $25,000 relating to the Company Facilities or any of its Subsidiaries for the development of Software, including any components of Company SoftwarePurchased Assets;
(vii) Any joint ventureagreement, joint development contract or partnership agreement commitment relating to the Facilities or similar agreement the Purchased Assets limiting or arrangement involving restraining the Company Seller or Cephalon or any successor thereto, to the best of its Subsidiaries;the Seller's and Cephalon's knowledge, from using or operating the Purchased Assets in any legal manner, nor, to the Seller's or Cephalon's knowledge, is any employee of the Seller engaged in the use of the Purchased Assets subject to any such agreement, contract or commitment; and
(viii) Any license, franchise or distributorship agreement of indemnification relating to the Facilities or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereofPurchased Assets. Except as would not havemay be disclosed on SCHEDULE 3.1(H), individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments agreements, contracts, commitments, leases, plans and other amounts required instruments, documents and undertakings listed on SCHEDULE 3.1(H) under which the Purchaser is to acquire rights or obligations hereunder is valid and enforceable in accordance with its terms, except as may be paid limited by Seller, bankruptcy laws and other similar laws affecting the Company or any rights of its Subsidiaries, which have become due, have been paid, (ii) creditors generally and principles of equity; the Seller and Cephalon are in compliance with the provisions thereof; neither the Company Seller nor any of its Subsidiaries is Cephalon is, and to the Seller's or Cephalon's knowledge no other party thereto is, in default in the performance, observance or fulfillment of its obligations under any of the Contractsmaterial obligation, covenant or condition contained therein, and no event, occurrence, condition event has occurred which with or act which, with without the giving of notice, the notice or lapse of time time, or both, would constitute a default thereunder. Except as set forth on SCHEDULE 3.1(H), no written or oral agreement, contract or commitment described in SCHEDULE 3.1(H), requires the happening consent of any further condition could become a default by party to its assignment in connection with the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractstransactions contemplated hereby.
Appears in 1 contract
Sources: Assets Purchase Agreement (North American Vaccine Inc)
Contracts and Commitments. (ai) Schedule 4.15 of Except as expressly contemplated by this Agreement or as set forth on the attached "Contracts Schedule" or the attached "Employee Benefits Schedule," neither the Company Disclosure Schedule contains nor any Subsidiary is a list (and. where party to or bound by any written or oral, a summary description) of:
(i) All material contractspension, commitmentsprofit 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 or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, leasesprograms, licensespolicies or arrangements;
(ii) contract for the employment of any officer, undertakings and individual employee or other arrangements Person on a full-time, part-time, consulting or other basis providing annual compensation in excess of $100,000 or having a remaining term of 3 years or longer, or contract relating to loans to officers, directors or Affiliates;
(iii) contract under which the Company or any Subsidiary has advanced or loaned any other Person amounts in the aggregate exceeding $10,000;
(iv) 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 and its Subsidiaries is Subsidiaries;
(v) guarantee of any obligation in excess of $10,000 (other than by the Company of a party, Wholly-Owned Subsidiary's debts or a guarantee by a Subsidiary of the Company's debts or another Subsidiary's debts);
(vi) lease or agreement under which the Company or any Subsidiary is lessee of its Subsidiariesor holds or operates any property, their respective businesses real or assetspersonal, owned by any other party, except for any lease of real or personal property under which the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves aggregate annual rental payments or receipts in excess of Fifty Thousand Dollars (do not exceed $50,000)100,000;
(iivii) Any Real Property Lease entered into lease or agreement under which the Company or any Subsidiary is lessor of or permits any third party to -35- hold or operate any property, real or personal, owned or controlled by the Company or any of its SubsidiariesSubsidiary;
(iiiviii) All employment agreementscontract or group of related contracts with the same party or group of affiliated parties the performance of which involves payments in any period of 12 consecutive months in excess of $100,000;
(ix) assignment, consulting agreements license, indemnification or agreement with respect to any intangible property (including, without limitation, any Intellectual Property);
(x) warranty agreement with respect to its services rendered or its products sold or leased;
(xi) agreement under which it has granted any Person any registration rights (including, without limitation, demand and executive compensation plans affecting any persons employed piggyback registration rights);
(xii) sales, distribution or retained franchise agreement;
(xiii) agreement with a term of more than six months which is not terminable by the Company or any of its SubsidiariesSubsidiary upon less than 30 days notice without penalty;
(ivxiv) Any contract, agreement containing covenants limiting the freedom or other arrangement (A) with any officer, director, stockholder, employee or (B) involving an aggregate of the Company $50,000 or more in any period of 12 consecutive months, with Affiliate, or any Affiliate of its Subsidiaries to compete in any line of business officer, director, stockholder or in any geographic location or to use or disclose any information in its possessionemployee;
(vxv) Any license agreements involving contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;world; or
(vixvi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under agreement which is material to its operations and business prospects or involves a consideration in excess of $120,000 annually (excluding any of the Contractspurchase order involving less than $250,000).
Appears in 1 contract
Sources: Purchase Agreement (United Usn Inc)
Contracts and Commitments. (a) Schedule 4.15 Section 4.13 of the Company Disclosure Schedule Letter contains a complete and accurate list (and. where oral, a summary description) of:
(i) All material of all written contracts, commitments, agreements, leases, licenses, undertakings and other arrangements plans or agreements ("Contracts") of the following categories to which the Company or any of its Subsidiaries is a party, party or by which any of them is bound as of the date of this Agreement:
(i) employment Contracts pursuant to which any person receives annual compensation in excess of $125,000, including contracts to employ executive officers and other contracts with officers, directors or shareholders of the Company, and all severance, change in control or similar arrangements with any executive officers of the Company;
(ii) Contracts with executive officers of the Company or any of its Subsidiaries pursuant to which any such officer or employee would be entitled to receive any severance, change in control or similar payment upon Hill ceasing to own a stated amount or percentage of outstanding Company Common Stock or other voting securities of the Company, (whether or not the receipt of such payment by any such executive officer would also require the termination of employment of such executive officer);
(iii) 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 million;
(iv) Contracts for the purchase of inventory or equipment which are not cancelable (without material penalty, cost or other liability) within one year and other Contracts, whether or not made in the ordinary course of business, involving annual expenditures or liabilities in excess of $2 million which are not cancelable (without material penalty, cost or other liability) within 90 days;
(v) Contracts pursuant to which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice and involves payments or receipts Subsidiaries receives annual revenues in excess of Fifty Thousand Dollars ($50,000)1,000,000;
(iivi) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement Contracts containing covenants limiting the freedom of the Company or any of its the Material Company Subsidiaries to compete engage in any line of business or in compete with any geographic location or to use or disclose any information in its possessionperson;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development any Contract restricting the ownership or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any voting of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement capital stock of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary other than as contemplated by this Agreement or non-voluntarythe exhibits hereto;
(viii) joint venture or partnership agreements; and
(xix) Any agreement under which any Person has any direct Contract pending for the acquisition, directly or indirect pecuniary interest in the Company indirectly (by merger or any of its material assets.
(b) The contracts required to be listed or described on Schedule 4.15(aotherwise) of material assets or capital stock of another person. True and complete copies of the Company written Contracts identified in Section 4.13 of the Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has Letter have been delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each of the Contracts is in full force and effect and all payments and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company Purchaser or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractsrepresentatives.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 4.15 Except as set forth on Section 4.8(a) of the Company Disclosure Schedule contains a list (and. where oralSchedule, a summary description) ofas of the date of this Agreement, neither the Company nor any of its Subsidiaries is party to or bound by any:
(i) All material contractsemployment agreements or employment Contracts (other than customary employment offer letters of the Company or its Subsidiaries) with any Key Employee;
(ii) collective bargaining agreement or other Contract with any labor organization, commitmentsworks council, agreementsunion or association in respect of employees of the Company or its Subsidiaries (a “Collective Bargaining Agreement”);
(iii) Contract under which the Company or its Subsidiaries has borrowed any money from, leasesor issued any note, licensesbond, undertakings and debenture or other arrangements evidence of Indebtedness to, any Person, or otherwise relating to Indebtedness, or pursuant to which the Company or any of its Subsidiaries is required to advance, loan or make a partycapital contribution to, or by which the Company or any Person, in each case, in excess of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or $500,000 (other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into than trade payables incurred in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving other than intercompany obligations solely between the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programsany Joint Venture Subsidiaries);
(viiv) Any agreement involving Contract under which the Company or its Subsidiaries has directly or indirectly guaranteed Indebtedness of any other Person in excess of $500,000, except for intercompany Indebtedness solely between the Company or any of its Subsidiaries (other than any Joint Venture Subsidiaries);
(v) Contract or series of related Contracts that represents the resolution, settlement, release or compromise of any actual or threatened Action or series of related Actions against or by the Company or its Subsidiaries that seeks or provides for injunctive relief or will require payment by the development Company or its Subsidiaries of Softwareconsideration in excess of $500,000 after the date of this Agreement;
(vi) Contract granting a Lien upon the Company or its Subsidiaries’ assets, including any components or which secures Indebtedness in excess of Company Software$500,000;
(vii) Any Contract with any Top Customer or Top Supplier other than statements of work (and similar ancillary Contracts) or Contracts that are not material to the relationship with any such Top Customer or Top Supplier;
(viii) Contract (A) for any joint venture, joint development or partnership agreement stockholder, partnership, investors rights, voting rights or similar Contract or a limited liability company agreement (in each case, other than solely among the Company and its Subsidiaries (other than any Joint Venture Subsidiaries) or arrangement involving (B) relating to ownership of or investments in any Person (other than any Joint Venture Subsidiaries) of the Company or the material sharing of revenues, profits or expenses;
(ix) Contract (A) granting exclusive rights or prohibiting or restricting the ability of the Company or its Subsidiaries to engage in any business, to operate in any geographical area or to compete with any Person (excluding confidentiality and non-disclosure agreements that do not contain any restrictions other than customary confidentiality and non-disclosure obligations) or (B) containing any “most favored nation”, “right of first refusal” or “first negotiation”, “take or pay” or other guaranteed minimum purchase obligation, sale obligation or other similar provision or obligation;
(x) Contract for any lease or sublease of personal property requiring payments in excess of $250,000 in any fiscal year or $1,000,000 in the aggregate, in each case that cannot be terminated on not more than 90 days’ notice without payment by the Company or any of its Subsidiaries;Subsidiaries of any termination fee or other similar penalty.
(viiixi) Any agreement of indemnification Contract with any Governmental Body requiring annual payments by or guaranty involving to the Company or any of its SubsidiariesSubsidiaries in excess of $500,000;
(ixxii) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of Affiliate Contract;
(xiii) Contract between the Company or any of its Subsidiaries (other than Private Market Connect, LLC or Synaps Loans LLC, or any of their respective Subsidiaries) on the one hand, whether such payments are payable upon a termination that is voluntary and Private Market Connect, LLC or Synaps Loans LLC (or any of their respective Subsidiaries) on the other hand;
(xiv) Contract (excluding confidentiality and non-voluntary; and
(xdisclosure agreements that do not contain any restrictions other than customary confidentiality and non-disclosure obligations and non-binding letters of intent) Any agreement under which any Person has any direct relating to the acquisition or indirect pecuniary interest in disposition by the Company or any of its Subsidiaries of any business or a material assetsamount of stock or assets of any other Person (whether by merger, sale of stock, sale of assets or otherwise) (A) for aggregate consideration (including any earn-out or similar consideration) in excess of $5,000,000 entered into since January 1, 2015 or (B) pursuant to which the Company or any of its Subsidiaries has any remaining obligations (other than customary confidentiality and non-disclosure obligations or customary covenants to provide reasonable access to books and records); or
(xv) Contract containing commitments or obligations to enter into any agreement of the types described in this Section 4.8.
(b) The contracts Company has made available to Parent a true and correct copy of (i) each Contract set forth in, or required to be listed set forth in, Section 4.8(a) of the Company Disclosure Schedules and (ii) each Organizational Document of the Company and each of its Subsidiaries.
(c) Neither the Company nor any of its Subsidiaries is in material default under or described on Schedule 4.15(abreach of (or is, to the Knowledge of the Company, alleged to be in material default of or breach under), and to the Knowledge of the Company no event or circumstance has occurred that, with notice or lapse of time or both, would constitute any material default under, or breach of, any Contract set forth in (or required to be set forth in, or entered into after the date hereof that, had it been entered into as of the date hereof would have been required to be set forth in) Section 4.8(a) of the Company Disclosure Schedule are referred to in this Agreement as (each, a “Material Contract” and, collectively, the “Material Contracts.” Seller has delivered or made available to Acquirer a true”), correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except except as would not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each Material Contract is valid and binding on the Company or its Subsidiary and, (i) each to the Knowledge of the Contracts Company, each other party thereto, and is in full force and effect and all payments and other amounts required to enforceable in accordance with its terms, except (x) as enforceability may be paid limited by Seller, the Company Enforceability Exceptions or any of its Subsidiaries, which have become due, have been paid, (iiy) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contractswhere such failure would not have, and no eventwould not reasonably be expected to have, occurrenceindividually or in the aggregate, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the ContractsMaterial Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (IHS Markit Ltd.)
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 of 4.09, neither the Company Disclosure Schedule contains a list (and. where oralnor any of its Subsidiaries is, with respect to the Business, a summary description) ofparty to any:
(i) All agreement relating to any completed or pending material contractsbusiness acquisition or disposition by the Company or any Subsidiary Since January 1, commitments2007;
(ii) collective bargaining agreement or contract with any labor union;
(iii) material bonus, agreementspension, leasesprofit sharing, licensesretirement or other form of deferred compensation plan (other than as described in Schedule 4.13 hereof);
(iv) stock purchase, undertakings stock option or similar plan;
(v) (A) written employment, consulting or other similar agreement with any individual employee or other service provider of the Business, which provides for the payment of compensation in excess of $75,000 per annum; and (B) severance, retention, change of control or other arrangements similar agreement with any individual employee of the Business;
(vi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any material portion of the Business’s assets;
(vii) guaranty of any obligation for borrowed money;
(viii) lease, license or agreement under which it is a lessor or licensor of or permits any third party to hold or operate any property, real or personal, for which the annual licensee fee or rental exceeds $100,000;
(ix) any partnership, joint venture or other similar contract or agreement;
(x) contract or group of related contracts with the same party for the purchase or sale of products or services involving aggregate annual consideration which exceeds $250,000 (other than purchase orders entered into in the ordinary course of business);
(xi) agreement for the use by the Company or any of its Subsidiaries is a partyof third party Intellectual Property Rights (excluding shrink-wrap, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or (ii) entered into in the ordinary course of business consistent with past practice click-wrap and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf licenses for software programs;
(vi) Any agreement involving that are generally commercially available on reasonable terms to the Company or any of its Subsidiaries public and for which the development of Softwarelicense, including any components of Company Software
(vii) Any joint venturemaintenance, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments support and other fees are payable upon a termination that is voluntary or non-voluntaryless than $50,000 per annum); and
(xxii) Any agreement under contract which any Person has any direct or indirect pecuniary interest materially restricts the operation of the Business anywhere in the Company or any of its material assetsworld.
(b) The contracts required to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, (i) each All of the Contracts is contracts listed on the Schedule 4.09 (each, a “Material Contract” and, collectively, the “Material Contracts”) are in full force and effect and all payments constitute legal, valid and other amounts required to be paid by Seller, binding obligations of the Company or any a Subsidiary of its Subsidiariesthe Company and, which have become dueto Seller’s knowledge, have been paidthe other parties thereto, (ii) neither the Company nor any of its Subsidiaries Subsidiary is in material default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, Material Contract and (iii) since to Seller’s knowledge, the Financial Date, no waiver has other party to each of the Material Contracts is not in material default thereunder.
(c) True and complete copies of the Material Contracts have been granted by Seller or made available to Buyer by the Company Company, together with all amendments, waivers or other changes thereto. No party has repudiated any term of any Material Contract, or to Seller’s knowledge, threatened to dispute, terminate, cancel or not renew, or attempted or requested to renegotiate, or has any other party under outstanding right to renegotiate, any of the ContractsMaterial Contract.
Appears in 1 contract
Contracts and Commitments. 3.9.1 Except as expressly contemplated by this Agreement or as set forth in Section 3.9.1 of the Seller Disclosure Schedule, each Group Company is not a party to or bound by any of the following Contracts, whether written or oral (each a “Material Contract”):
(a) Schedule 4.15 of the Company Disclosure Schedule contains a list (and. where oral, a summary description) of:collective bargaining agreement or any other Contract with any labor union;
(ib) All material contractsany contracts with any Governmental Authorities
(c) Contract, commitmentsagreement or indenture relating to any Indebtedness or to mortgaging, agreementspledging or otherwise placing a Lien on any portion of their properties or assets (A) pursuant to which, leases, licenses, undertakings and other arrangements to such Group Company has incurred or may incur Indebtedness for which the Company or any of its Subsidiaries is a party, or by which such Group Company will be liable following the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practiceClosing, or (iiB) entered into in relating to any Liens on assets of a Group Company;
(d) guaranty of any Indebtedness or other material guaranty;
(e) 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 other party;
(f) Contracts or group of related Contracts with any customer or any supplier;
(g) Contracts or agreements relating to the ordinary course acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or business consistent or the equity or substantially all of the assets of any Person by a Group 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 a Group Company or, pursuant to which a Group Company have any continuing “earn out” or other contingent payment obligations or any surviving material indemnification obligations;
(h) joint venture, partnership, limited liability company or similar agreement with past practice and involves payments any third party (including any agreement providing for joint development or receipts in excess of Fifty Thousand Dollars ($50,000marketing);
(iiA) Any Real Contract pursuant to which a Group 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 Lease entered into by Rights, (B) Contract pursuant to which a third party licenses, or is permitted to use or register, or granted any other rights under, any Company-Owned IP Rights (other than non-exclusive licenses granted to customers in the Company Ordinary Course of Business), or (C) Contract affecting a Group Company’s ability to use, enforce, or disclose any of its Subsidiariesmaterial Intellectual Property Rights, such as covenant-not-to-sue, coexistence, consent-to-use, concurrent use, or settlement agreements;
(iiij) All employment agreementsdistribution, consulting agreements and executive compensation plans affecting any persons employed sales representative, marketing or retained by the similar Contract or agreement that required a Group Company or any of its Subsidiariesto make commission payments under such agreement;
(ivk) Any Contract or agreement containing covenants limiting pursuant to which each Group Company would be required to make, in the freedom aggregate, capital expenditures;
(l) Contract or agreement that (A) limits or purports to limit the ability of the any Group Company or any of its Subsidiaries to compete in any line of business or with any product or with any Person or in any geographic location area or to use market or disclose during any information period of time or (B) contains covenants that restrict the business activity of any Group Company in its possessionany material respect (other than non-disclosure agreements entered into in the ordinary course of business, consistent with past practice);
(vm) Any license agreements involving the Company Contract or agreement that contains “most-favored-nation” obligations or restrictions, or rights of first refusal or offer or any similar requirement or right, in each case binding a Group Company in favor of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programsany third party;
(vin) Any Contract or agreement involving the where each Group Company is subject to a requirement of exclusive dealing or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiariesexclusivity obligation;
(viiio) Any agreement of indemnification any interest, currency or guaranty involving the Company hedging derivatives or any of its Subsidiariessimilar Contracts;
(ixp) Any Contract or agreement with that limits the incurrence of Indebtedness or the declaration or payment of any dividends or other distributions;
(q) Contract or agreement that involves payment to or by any Group Company;
(r) Contract or agreement whose termination (other than those termination by passage of the Company’s time) would reasonably be expected to have a Material Adverse Effect;
(s) employment, severance or its Subsidiaries’ current or former officers, directors or employees providing for consulting Contract that is not terminable at will by a Group Company and which will require the payment of amounts by a Group Company after the date hereof; or
(t) Contract or agreement that relates to the settlement of any severance pay Proceeding (A) with any Governmental Authority since the Look-back Date, (B) that materially restricts or payment imposes obligations upon the occurrence of a “change in control” agreement of the Group Company or any of its Subsidiaries, whether such payments are payable upon (C) requires payment by a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in Group Company after the Company or any of its material assetsdate hereof.
(b) 3.9.2 The contracts required to be listed Purchaser either has been supplied with, or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer been given access to, a true, true and correct and complete copy of all written Contracts (and where oralMaterial Contracts, a written summary description of such oral Contracts) together with all supplements, amendments, modifications and assignments thereof. Except as would not havewaivers or other changes thereto.
3.9.3 Neither any Group Company nor, individually or in to the aggregate, a Company Material Adverse Effect, (i) each Knowledge of the Seller and each Group Company, any other party thereto is in material breach of, violation of or default under any Material Contract. No event has occurred that with notice or lapse of time or both would constitute a material breach of, violation of or default under, any Material Contract by a Group Company, or, to the Knowledge of the Seller and each Group Company, any counterparty. All Material Contracts is are valid and in full force and effect and all payments constitute legal, valid and binding obligations of each Group Company and each counterparty, and are enforceable against each Group Company and 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 amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller or by the Company to any other party under any of the Contractsequitable remedies.
Appears in 1 contract
Sources: Share Purchase Agreement (Australian Oilseeds Holdings LTD)
Contracts and Commitments. (a) Schedule 4.15 of Except as set forth on the Company Disclosure Schedule contains attached Contracts Schedule, the Companies are not a list (and. where oral, a summary description) of:
party to any: (i) All material contracts, commitments, agreements, leases, licenses, undertakings and other arrangements to which the Company collective bargaining agreement or contract with any of its Subsidiaries is a party, or by which the Company or any of its Subsidiaries, their respective businesses or assets, or the Shares, are bound or affected or which affect the consummation of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking or other arrangement shall be considered “material” for purposes of this Section 4.15(a)(i) if it is or was (i) entered into outside the ordinary course of business consistent with past practice, or labor union; (ii) entered into bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 4.14 or the schedules relating thereto; (iii) stock purchase, stock option or similar plan, other than as described in Section 4.14 or the schedules relating thereto; (iv) contract for the employment of any officer or “partner”; (v) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any material portion of the Company’s assets; (vi) guaranty of any obligation for borrowed money or other material guaranty; (vii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $150,000; (viii) lease or agreement 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 $150,000 other than as disclosed on the Leased Real Property Schedule; (ix) contract or group of related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and services has a selling price in excess of $150,000; (x) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $500,000; (xi) contract which prohibits the Company from freely engaging in business anywhere in the world, other than standard employee non-solicitation or conflict of interest clauses contained therein, or requires any Company to conduct its consulting services business with any client on an exclusive basis or otherwise limits such business with a non-compete clause; (xii) partnership or joint venture agreements or (xiii) other material agreements not in the ordinary course of business consistent where the subject matter exceeds $150,000. The Contracts Schedule also includes a list (with past practice and involves payments or receipts brief description) of all powers of attorney granted by any Company in excess of Fifty Thousand Dollars ($50,000);
(ii) Any Real Property Lease entered into by effect on the Company or any of its Subsidiaries;
(iii) All employment agreements, consulting agreements and executive compensation plans affecting any persons employed or retained by the Company or any of its Subsidiaries;
(iv) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct or indirect pecuniary interest in the Company or any of its material assetsdate hereof.
(b) The contracts required to be listed Buyer either has been supplied with, or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer been given access to, a true, true and correct and complete copy of all written contracts which are referred to on the Contracts (and where oralSchedule, a written summary description of such oral Contracts) together with all material amendments, modifications waivers or other changes thereto.
(c) The Companies are not in material default under any contract listed on the Contracts Schedule. Each contract listed on the Contracts Schedule is a valid and assignments thereof. Except as would not have, individually or binding agreement enforceable by and against the Company which is a party thereto in accordance with its terms assuming each such contract is the aggregate, a Company Material Adverse Effect, (i) each valid and binding agreement of the Contracts is in full force and effect and all payments and other amounts required counterparty(ies), except to the extent enforcement thereof may be paid limited or affected by Sellerany applicable bankruptcy, the Company insolvency, receivership, reorganization, moratorium or any of its Subsidiaries, which have become due, have been paid, (ii) neither the Company nor any of its Subsidiaries is in default of its obligations under any of the Contracts, and no event, occurrence, condition or act which, with the giving of notice, the lapse of time or the happening of any further condition could become a default by the Company or its Subsidiaries under any of the Contracts, and (iii) since the Financial Date, no waiver has been granted by Seller similar laws affecting creditors’ rights generally or by the Company to any other party under any general principles of the Contractsequity or public policy.
Appears in 1 contract
Sources: Stock Purchase Agreement (Diamond Management & Technology Consultants, Inc.)
Contracts and Commitments. (a) Except as set forth on Schedule 4.15 of 3.08(a) (such contracts disclosed or required to be disclosed thereon, the “Material Contracts”), no Acquired Company Disclosure Schedule contains is a list (and. where oral, a summary description) ofparty to or bound by any:
(i) All material contractsbonus, commitmentspension, agreementsprofit sharing, leasesretirement or other form of deferred compensation plan, licensesother than as described in Schedule 3.12(a);
(ii) contract for the employment of any officer, undertakings individual employee or other person on a full‑time or consulting basis other than offer letters for at-will employees without severance or notice periods of more than thirty (30) days and other arrangements that are materially similar to an Acquired Company’s existing form, a copy of which has been made available to the Purchaser;
(iii) agreement, plan, or arrangement providing for severance, retention, change in control payments, or transaction-based bonuses or incentives;
(iv) agreement involving any current or former officer, director or stockholder of any Acquired Company or any of its Subsidiaries is Affiliate thereof;
(v) agreement or indenture under which any Acquired Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) Indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a party, or by which the Company or Lien (other than a Permitted Lien) on any of its Subsidiaries, their respective businesses or assets, tangible or intangible;
(vi) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party;
(vii) lease or agreement under which it is lessor of or permits any third party to hold or operate any of its personal property;
(viii) contract or group of related contracts with the Sharessame party for the purchase by any Acquired Company of products or services which provides for annual payments in excess of $250,000 during any twelve (12)‑month period or in which any Acquired Company has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(ix) contract or group of related contracts for the sale by any Acquired Company of products or services that provides for revenues during any twelve (12)‑month period in excess of $500,000, are bound or affected in which an Acquired Company has granted manufacturing rights, “most favored nation” pricing provisions or which affect marketing or distribution rights relating to any services, products or territory;
(x) agreement for the consummation disposition of any significant portion of the transactions contemplated hereby. Any contract, commitment, agreement, lease, license, undertaking assets or business of any Acquired Company (other arrangement shall be considered “material” for purposes than sales of this Section 4.15(a)(i) if it is or was (i) entered into outside product inventory in the ordinary course of business) or any agreement for the acquisition of the assets or business consistent of any other Person (other than purchases of supplies or components in the ordinary course of business);
(xi) agreement concerning non-solicitation, noncompetition or that otherwise could reasonably be expected to have the effect of prohibiting or impairing any Acquired Company from freely engaging in business anywhere in the world;
(xii) agreement providing for any royalty, milestone or similar payments by any Acquired Company;
(xiii) agreement concerning the establishment or operation of a partnership, joint venture or limited liability company;
(xiv) settlement agreement or settlement-related agreement (including any agreement in connection with past practicewhich any employment-related claim is settled);
(xv) agreement which contains any provisions requiring any Acquired Company to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or (ii) license of products or services entered into in the ordinary course of business consistent with past practice and involves payments or receipts in excess of Fifty Thousand Dollars ($50,000business);
(iixvi) Any license, agreement or other instrument required to be listed in Schedule 3.09(d) or Schedule 3.09(e);
(xvii) Real Property Lease entered into by Lease;
(xviii) Government Contract;
(xix) agreement that would entitle any third party to receive a license or any other right to Intellectual Property of the Company Purchaser or any of its Subsidiaries;
Affiliates (iiiexcluding the Acquired Companies) All employment agreementsfollowing the Closing, consulting agreements and executive compensation plans affecting any persons employed or retained by that would otherwise bind or purport to bind the Company Purchaser or any of its Subsidiaries;Affiliates (excluding the Acquired Companies) following the Closing; or
(ivxx) Any agreement containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or in any geographic location or to use or disclose any information in its possession;
(v) Any license agreements involving the Company or any of its Subsidiaries (as licensor or licensee) other than licenses for the use of off-the-shelf software programs;
(vi) Any agreement involving the Company or any of its Subsidiaries for the development of Software, including any components of Company Software
(vii) Any joint venture, joint development or partnership agreement or similar agreement or arrangement involving the Company or any of its Subsidiaries;
(viii) Any agreement of indemnification or guaranty involving the Company or any of its Subsidiaries;
(ix) Any agreement with any of the Company’s or its Subsidiaries’ current or former officers, directors or employees providing for the payment of any severance pay or payment upon the occurrence of a “change in control” agreement of the Company or any of its Subsidiaries, whether such payments are payable upon a termination that is voluntary or non-voluntary; and
(x) Any agreement under which any Person has any direct the consequences of a default or indirect pecuniary interest in the Company or any of its material assetstermination would reasonably be expected to have a Material Adverse Effect.
(b) The contracts required With respect to be listed or described on Schedule 4.15(a) of the Company Disclosure Schedule are referred to in this Agreement as the “Contracts.” Seller has delivered or made available to Acquirer a true, correct and complete copy of all written Contracts (and where oral, a written summary description of such oral Contracts) together with all amendments, modifications and assignments thereof. Except as would not have, individually or in the aggregate, a Company each Material Adverse Effect, Contract: (i) such contract is a valid and binding agreement of the applicable Acquired Company and, to the Acquired Companies’ knowledge, each of the Contracts is other parties thereto, enforceable in full force accordance with its terms, except as the enforcement thereof may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights generally and effect and all payments general principles of equity affecting the availability of specific performance and other amounts required to be paid by Seller, the Company or any of its Subsidiaries, which have become due, have been paid, equitable remedies; (ii) neither the no Acquired Company nor any of its Subsidiaries is in breach or default of its obligations under in any of the Contractsmaterial respect, and no event, occurrence, condition nor has any Acquired Company taken or act failed to take any action which, with the giving of notice, the notice or lapse of time time, would constitute a breach or the happening of default in any further condition could become a default by the Company material respect, or its Subsidiaries permit termination, material modification or acceleration, as applicable, under any of the Contracts, such contract; and (iii) since to the Financial DateAcquired Companies’ knowledge, no waiver has been granted by Seller or by the Company to any other party is in breach or default in any material respect under such contract. There are no audits being conducted by third parties relating an Acquired Company’s performance under any Material Contract. The Company has made available to Purchaser a complete and accurate copy of the Contractseach Material Contract (as amended to date).
Appears in 1 contract