Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect to which Seller is a party in connection with the Business, including, without limitation, any written or oral: (a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice; (b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options); (c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted; (d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person; (e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller; (f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and (g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedies.
Appears in 1 contract
Contracts and Commitments. Section 5.17 of the Selling Companies Disclosure Schedule 3.16 sets forth all Contracts presently in effect is a correct and complete list of each currently effective Contract to which Seller any of the Selling Companies or any of their Subsidiaries is a party in connection with as of the Businessdate hereof and which constitutes any of the following (collectively, including, without limitation, any written or oral:the “Material Contracts”):
(a) commitmenta partnership, contractjoint venture, note, loan, evidence of indebtedness, purchase order strategic alliance or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticesimilar Contract;
(b) lease of personal property with respect to a Contract providing for the Business involving indemnification by any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased itemsSelling Companies or a Subsidiary of the Selling Companies of any Person, term, annual rent and renewal options)other than in the ordinary course of business consistent with past practice;
(c) an agreement, arrangement or obligation with another Person which purports to limit in any material governmental respect (i) the ability of any of the Selling Companies or regulatory licenses any of their Subsidiaries to solicit customers, (ii) the localities in which all or permits required to conduct any significant portion of the Business business and operations of any of the Selling Companies or any of their Subsidiaries or, following the consummation of the transactions contemplated by this Agreement, the business and operations of Parent and its Affiliates, is or would be conducted, or (iii) the scope of the business and operations of the Selling Companies and their Subsidiaries, taken as presently conducteda whole;
(d) contracts any material licenses, sublicenses and other agreements to which the Selling Companies or agreements containing covenants limiting their Subsidiaries are a party (i) granting any other Person the freedom of Seller right to engage use intellectual property, other than in any line the ordinary course of business consistent with past practice, (ii) restricting the right of any of the Selling Companies or compete their Subsidiaries to use intellectual property, other than in the ordinary course of business consistent with past practice, or (iii) pursuant to which any personof the Selling Companies or any of their Subsidiaries are authorized to use any third party intellectual property, which are incorporated in, are, or form a part of any Selling Companies Product or which are otherwise used (or currently proposed to be used) by any of the Selling Companies or any of their Subsidiaries in the Business (other than readily available commercial off-the-shelf software having an acquisition price of less than $20,000 in the aggregate for all such related software);
(e) employment contractsa Contract that contains any royalty, including without limitation, contracts to employ executive officers and other contracts with officers dividend or directors similar arrangement based on the revenues or profits of Sellerany of the Selling Companies;
(f) contracts a material Contract with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); andany Governmental Authority;
(g) contracts and commitments not otherwise described in this Section 3.16 a Contract for the acquisition or listed on Schedule 3.16 (including purchase ordersdisposition of any material interest in, franchise agreements and undertakings or commitments to any Governmental Entity) relating to material amount of, property or assets of any of the Business Selling Companies or otherwise affecting the Business under contracts not any of their Subsidiaries other than in the ordinary course of businessbusiness consistent with past practice or for the grant to any Person of any preferential rights to purchase any of their assets;
(h) a Contract under which any Selling Company or any of their Subsidiaries has made advances or loans in excess of $100,000 to any other Person (which shall not include advances made to an employee of the Selling Companies or any of their Subsidiaries in the ordinary course of business consistent with past practice); it being understood that or
(i) any other agreement (or group of related agreements) the performance of which requires aggregate payments to or from the Selling Companies or any of their Subsidiaries in excess of $200,000, other than agreements entered into in the ordinary course of business consistent with respect past practice. The Selling Companies have made available or delivered to each category listed above for which a dollar amount threshold has been establishedParent true and complete copies of all written and accurate and complete descriptions of all material terms of all oral Material Contracts. Each Material Contract is in full force and effect and none of the Selling Companies or any of their Subsidiaries or, to the Knowledge of the Selling Companies, any item within other party thereto is in material default or breach under the terms of any such category with Material Contract. Each Material Contract is a value less than valid and binding obligation of the dollar amount specified shall be deemed immaterial. Seller is not (applicable Selling Company and/or its Subsidiaries and, to the best knowledge Knowledge of the StockholderSelling Companies, no other party is) in breach or violation of, or default under, any each of the Contracts or other instrumentsparties, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller them in accordance with its respective terms, and is, . The applicable Selling Company and/or each of its Subsidiaries has duly performed all of its material obligations under each such Material Contract to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against extent that such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesobligations have accrued.
Appears in 1 contract
Sources: Merger Agreement (Ansys Inc)
Contracts and Commitments. Except for Contracts listed in Schedule 3.16 sets forth all 5.6 and except for Contracts presently made in effect to which Seller the Ordinary Course of Business since the date hereof or as expressly contemplated by this Agreement and the transactions contemplated hereby, none of the Subject Companies is a party to, or bound by, any Contract of any kind to be performed after the Closing Date (i) pursuant to which it is obligated to expend more than $50,000 in connection with any twelve- month period and that is not subject to cancellation on not more than thirty (30) days' notice by such Subject Company, as the Business, includingcase may be, without limitationpenalty or increased cost except for agreements to charter transportation services made in the Ordinary Course of Business or (ii) with any Personnel or other Affiliates of such Subject Company. To the best knowledge of the Sellers, there is no Default by any written party to any such Contract, which Default would have a Material Adverse Effect. Schedule 5.6 lists the following Contracts to which any Subject Company is a party, or oralby which any of such Subject Company's Assets are bound:
(a) commitmentany written Contract (or group of related written Contracts) creating a partnership or joint venture with any other Person;
(b) any promissory notes, contractloans, noteagreements in respect of indebtedness for borrowed money, loanindentures in respect of indebtedness for borrowed money, evidence evidences of indebtedness, purchase order or letter letters of credit involving in which the Target or any obligation of its Subsidiaries is the account party or liability on guarantees of any of the part items described above, individually or in the aggregate in excess of Seller $25,000, whether any Subject Company shall be the borrower, lender or guarantor thereunder or whereby any Assets are pledged (excluding credit provided by the Subject Company in the ordinary course of business to purchasers of its products or services);
(c) any written Contracts to employ or terminate key Personnel (as defined below) and other material Contracts with respect present or former officers, directors or shareholders or other personnel of any Subject Company.
(d) any written Contract (or group of related written Contracts) concerning confidentiality or non-competition arrangements;
(e) any written Contract (or group of related written Contracts) between any Subject Company and (i) any Russian Venture or (ii) Smit-Matrix;
(f) any written Contract with any of its directors, officers, shareholders or employees, any Affiliate thereof or any member of any such person's immediate family (x) providing for the furnishing of material services by, (y) providing for the rental of material real or personal property from, or (z) otherwise requiring material payments to (other than for services as officers, directors or employees of any Subject Company), any such Person or any corporation, partnership, trust or other entity in which any such Person has a substantial interest as a shareholder, officer, director, trustee or partner;
(g) except for Contracts with attorneys and accountants for services to be provided in connection with the Acquisition, any written distribution, franchise, license, technical assistance, sales, commission, sales agent or advertising Contracts related to the Assets or the Business of more than any Subject Company involving receipts in excess of $5,000 (and not more than 500,000 or expenditures in excess of $10,000 in the aggregate) and 50,000 that are not cancelable (without liabilitypenalty or other termination fees) by the Subject Company party thereto on not more than 30 thirty (30) days' notice;
(bh) lease of personal property any options with respect to the Business involving any annual expense property, real or personal, with a book value in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon 50,000 whether a general description of Subject Company is the leased items, term, annual rent and renewal options)grantor or grantee thereunder;
(ci) material governmental except for agreements to charter or regulatory licenses purchase transportation services made in the Ordinary Course of Business, any Contracts involving expenditures in excess of $50,000 that are not cancelable (without penalty or permits required to conduct other termination fees) by the Business as presently conductedSubject Company party thereto on not more than thirty (30) days' notice;
(dj) contracts any written Contract with the United States, any state or agreements containing covenants limiting local government or any agency or department thereof;
(k) except for this Agreement, any Contract that (A) limits or contains restrictions on the freedom ability of Seller any Subject Company to declare or pay dividends on, to make any other distributions in respect of or to issue or purchase, redeem or otherwise acquire its capital stock, to incur indebtedness, to incur or suffer to exist any lien, to purchase or sell all or a material portion of Assets, to change the lines of business in which it participates or engages or to engage in any line business combination or (B) requires any Subject Company to maintain specified financial ratios or levels of business net worth or compete with any personother indicia of financial condition;
(el) employment contracts, including without limitation, contracts any other written Contract (or group of related written Contracts) involving aggregate payments of more than $500,000 to employ executive officers and other contracts with officers any Subject Company or directors not entered into in the Ordinary Course of Seller;Business; or
(fm) contracts with customers and suppliers of Seller any written proposal to enter into any contract, agreement or other arrangement with respect to any of the Business with matters referred to in the foregoing clauses (a) through (l). The Sellers have delivered to Buyer true, correct and complete, in all material respects, copies of each written Contract listed in Schedule 5.6 to which a gross value Subject Company is a party, including all amendments and supplements thereto, and have included as part of Schedule 5.6 a brief summary of any such oral contracts, agreements or other arrangements and any written proposals to Seller in excess of $2,000 per year (enter into any such Contracts. Schedule 3.16 5.6 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract consents required for the period following beneficial assignment by any Subject Company to Buyer of the period covered thereby rights, benefits and (ii) such contract permits such customer claims under the Contracts as a result of the transactions contemplated hereby. To the knowledge of the Sellers, all of the Contracts to which any Subject Company is party or supplier to terminate such contract on 60 days' notice by which it or less); and
(g) contracts any of the Assets is bound or affected are valid, binding and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to enforceable against the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (applicable Subject Company and, to the best knowledge of the StockholderSellers, no other party is) in breach or violation of, or default under, any against each of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller parties thereto in accordance with its respective their terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable (i) bankruptcy, insolvencymoratorium, reorganization, moratorium or reorganization and other similar laws relating to or affecting creditors' creditor's rights generally and except as (ii) the general principles of equity, regardless of whether asserted in a proceeding in equity or at law. Each Subject Company which is a party to such Contracts and, to the availability knowledge of equitable remediesthe Sellers, each other person which is a party thereto has complied in all material respects with the provisions thereof, no party is in Default thereunder and no written, or to the knowledge of the Sellers, other notice of any claim of Default has been given to such Subject Company, except for Defaults which would not have a Material Adverse Effect. To the knowledge of the Sellers, none of the products and services called for by any unfinished Contract involving payments to any Subject Company in excess of $100,000 cannot be supplied in accordance with the terms of such Contract, including time specifications and, to the knowledge of the Sellers, no outstanding bid, proposal or unfinished Contract will upon performance by such Subject Company result in a loss to such Subject Company.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth in Schedule 3.16 sets forth all Contracts presently in effect to which Seller 5.19, neither the Company nor any Subsidiary is a party to or bound by any:
(i) Loan or credit agreement providing for the extension of credit for borrowed money to employees;
(ii) Service, employment, consulting, retainer or similar agreement which is not terminable on 90 days' notice or less without penalty or obligation to make payments by reason of such termination or which requires the payment of amounts in connection with excess of $25,000 per annum or $5,000 upon severance;
(iii) Covenant not to compete or confidentiality agreement which is material to the Businessbusiness, including, without limitation, financial condition or results of operations of the Company or any written or oral:Subsidiary;
(a) commitmentLease or similar agreement under which the Company or any Subsidiary is a lessor of, contractor makes available for use by any third party, noteany personal property owned by the Company or any Subsidiary, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease continuing contract for the future purchase of personal property with respect to the Business involving materials, supplies or equipment, (c) management, service, printing, advertising, public relations, consulting or other similar type of contract in any annual expense one case that has an aggregate future liability in excess of $5,000 10,000 and that is not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon terminable by the Company or any Subsidiary on 90 days' or less notice for a general description cost of the leased items, term, annual rent and renewal options)less than $10,000;
(cv) material governmental or regulatory licenses or permits required option to conduct the Business as presently conductedpurchase real property;
(dvi) contracts agreement or agreements containing covenants limiting contract under which the freedom Company or any Subsidiary has borrowed any money or issued any note, bond, indenture or other evidence of Seller to engage in any line indebtedness or directly or indirectly guaranteed indebtedness, liabilities or obligations of business or compete with any person;
others (e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract than endorsements for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not purpose of collection in the ordinary course of business) in an amount in excess of $10,000 in any one case or $50,000 in the aggregate; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall will not be deemed immaterial. Seller is not (and, satisfied or released on or prior to the best knowledge Closing Date.
(vii) distribution or sales agreement which involved the payment of fees or commissions by the Stockholder, no other party is) Company or any Subsidiary in breach excess of $5,000 in any one case or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or $25,000 in the aggregate, have a Seller Material Adverse Effect. Each Contract during the year ended December 31, 1996 (provided, that neither Seller, the Company nor any Subsidiary is party to any agreement providing for payment of commissions to sales representatives, whether employees or independent contractors);
(viii) mortgage, pledge, security agreement, deed of trust or other instrumentdocument granting an Encumbrance (including Encumbrances upon properties acquired under conditional sales, obligationcapital leases or other title retention or security devices) any of which is material to the business, evidence financial condition or results of indebtedness operations of the Company or any Subsidiary;
(ix) articulation agreement; and
(x) any other agreement, contract, lease, license, commitment or instrument which was not made in the ordinary course of business and which involves future payments or performance valued in excess of $10,000 in any one case or $50,000 in the aggregate.
(b) Each agreement, contract, lease, license, commitment or instrument of the Company or any Subsidiary described in paragraphs (a)-(gon Schedule 5.19 as an exception to subsection 5.19(a) above (the "Material Contracts") is a legal, valid and binding agreement, arrangement obligation of the Company or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedies.Subsidiary,
Appears in 1 contract
Contracts and Commitments. Except as disclosed on Schedule 3.16 sets forth all Contracts presently in effect to which Seller is a party in connection with 3.22 of the Business, including, without limitation, any written or oralDisclosure Schedule:
(a) commitmentThe Company is not nor is any Subsidiary, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to its business, a party to any oral or written contract:
(i) that prohibits the Business Company or any of more than $5,000 (and not more than $10,000 its Subsidiaries from freely engaging or competing in its line of business anywhere in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeworld;
(bii) lease that is not on arms-length terms;
(iii) pursuant to which the Company or any of personal property with respect its Subsidiaries has incurred or accrued losses;
(iv) that by its terms may be terminated upon a change in control of the Company or any of its Subsidiaries;
(v) that commits the Company or any of its Subsidiaries to purchase or sell any properties or assets outside of the Business involving any annual expense ordinary course of business for consideration in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)100,000;
(cvi) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default wouldinvolves an unfulfilled obligation, individually or in the aggregate, have in excess of $100,000 and is not terminable by the Company or any of its Subsidiaries upon less than 60 calendar days' notice for a Seller Material Adverse Effect. Each Contract cost of not less than $100,000;
(b) Since December 31, 1997, none of the Company's or any of its Subsidiaries' significant customers, suppliers, outside service providers or sources of referral has indicated that it will stop or materially decrease the rate of business done with or referred to either the Company or any such Subsidiary.
(c) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries is obligated to (i) purchase any property or services at a price greater than the prevailing market price, (ii) sell any property or services at a price less than the prevailing market price, (iii) pay rentals or royalties at a rate greater than the prevailing market price or (iv) act as lessor or licensor at a rate less than the prevailing market price.
(d) Parent has been supplied with a true and correct copy of all written contracts which are referred to on Schedule 3.22, together with all amendments, exhibits, attachments, waivers or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedieschanges thereto.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 3.16 sets 5.19 hereto (with paragraph references corresponding to those set forth below) contains a true and complete list of each of the following contracts (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all Contracts presently in effect amendments and supplements thereto, have been delivered or made available to HHTI), to which Seller STH or any of the STH Subsidiaries is a party in connection with or by which any STH Hotel or the Business, including, without limitation, any written or oralOffice Building is bound:
(ai) commitment, contract, note, loan, evidence all contracts providing for the leasing or management of indebtedness, purchase order one or letter more of credit involving the STH Hotels or the Office Building or any obligation portion of one or liability on more of the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeSTH Hotels;
(bii) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)all STH Franchise Agreements;
(ciii) all material governmental contracts providing for a commitment of employment or regulatory licenses consultation services for a specified or permits required to conduct the Business as presently conductedunspecified term;
(div) all contracts with any person containing any provision or agreements containing covenants covenant prohibiting or materially limiting the freedom ability of Seller STH or any of the STH Subsidiaries to engage in any line of business activity, hire employees, solicit customers or otherwise compete with any person;
(ev) employment contractsall partnership, including without limitationjoint venture, contracts to employ executive officers and stockholders' or other similar contracts with officers or directors of Sellerany person;
(fvi) all notes, debentures, bonds and other evidence of Indebtedness;
(vii) all contracts with customers relating to any business combination;
(viii) all contracts between or among STH or any of the STH Subsidiaries, on the one hand, and suppliers any of Seller with respect their stockholders or affiliates, on the other hand;
(ix) all collective bargaining or similar labor contracts; and (x) all other contracts that involve the annual payment or potential annual payment pursuant to the Business with a gross value terms of such contract, by or to Seller STH or any of the STH Subsidiaries of more than $25,000 or aggregate payments in excess of $2,000 per year 100,000 that will not (A) be fully performed on or prior to the Effective Time, (B) expire by their terms prior to the Effective Time, or (C) be cancelable by the Surviving Entity, without penalty, upon not more than 30 days notice, including, without limitation, all leases, contracts for purchase and sale of assets, advance booking contracts and banquet contracts.
(b) Each contract required to be disclosed on Schedule 3.16 sets forth all such contracts with customers 5.19 is in full force and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is constitutes a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective termsterms and, and isexcept as disclosed on Schedule 5.19, neither STH, any of the STH Subsidiaries nor, to the best knowledge of Seller and the StockholderSTH, a legal, valid and binding agreement, arrangement or commitment of each any other party thereto enforceable against to such other partiescontract is in violation, except insofar as breach or default under any such enforceability may contract (or with notice or lapse of time or both would be limited by applicable bankruptcyin violation, insolvencybreach or default under any such contract), reorganizationthe effect of which, moratorium individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(c) The STH Franchise Agreements disclosed on Schedule 5.19 constitute all of the franchise or similar laws relating agreements necessary to operate and manage the STH Hotels and neither STH nor any STH Subsidiary has received any notice or affecting creditors' rights generally and except as to the availability has any knowledge of equitable remediesan event of default or termination or proposed termination under any such STH Franchise Agreement.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets forth 5.13 lists all Contracts presently in effect of the following contracts or other arrangements (written or oral) to which the Seller is a party or by which it or its assets are bound:
(a) contracts relating to the purchase, distribution, marketing or sales of the Seller’s products, the performance of which will involve payments to or by the Seller in connection excess of $50,000;
(b) contracts, agreements or arrangements for the employment of any officer, individual employee, or other Person on a full-time, part-time, consulting or other basis, the performance of which will involve payments to or by the Seller in excess of $50,000;
(c) instruments, agreements or indentures relating to Funded Indebtedness or to the mortgaging, pledging or otherwise placing a Lien on any asset or group of assets of the Seller;
(d) factoring arrangements or other agreements involving the sale of the Seller’s accounts receivable to a third party at a discount;
(e) guarantees of any obligation for Funded Indebtedness;
(f) agreements with respect to the Businesslending or investing of funds;
(g) leases or agreements under which the Seller is the lessee, sublessee, occupant, holder or operator of any real property owned by any other party;
(h) leases or agreements under which the Seller is the lessee, sublessee, occupant, holder or operator of any personal property owned by any other party, the performance of which will involve payments to or by the Seller in excess of $50,000;
(i) leases or agreements under which the Seller is the lessor or sublessor of or permits any third party to occupy, hold or operate any real or personal property owned or controlled by the Seller;
(j) assignments, licenses, indemnifications or agreements with respect to any form of intangible property, including, without limitation, any written or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeIntellectual Property;
(bk) lease contracts or groups of personal property related contracts with respect to the Business involving any annual expense same party (excluding purchase orders entered into in the Ordinary Course of Business) 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 $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)50,000;
(cl) material governmental or regulatory licenses or permits required to conduct the Business as presently conductedresearch and development agreements;
(dm) any contracts or agreements containing covenants limiting not to compete or similar provisions (A) binding on the freedom Seller, (B) restricting other Persons for the benefit of the Seller to engage or (C) which otherwise restrict competition granted by the Seller in any line favor of business or compete with any persona third party;
(en) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers which contain a “most favored customer” or directors of Sellersimilar provision;
(fo) contracts with customers and suppliers which contain minimum purchase amounts or exclusivity or preference provisions binding on the Seller for the benefit of a third party;
(p) contracts under which the amount payable by the Seller with respect is dependent on the revenues or income or similar measure of the Business, or in which the Seller is obligated to pay royalties, commissions or similar payments to any Person;
(q) marketing, agency, advertising, sales representative, broker, distribution, fulfillment or similar contracts that require the expenditure of, or involve the receipt of, more than $50,000 in any consecutive twelve month period after the date hereof; or
(r) other agreements or instruments which are otherwise material to the Business with a gross value to Seller Business, and which are not listed in excess the foregoing clauses of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 5.13 (including purchase orderscollectively, franchise agreements the “Material Contracts”). Each Material Contract is valid and undertakings or commitments to any Governmental Entity) relating to enforceable against the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge Knowledge of the StockholderSeller, the other parties thereto. Except as specifically disclosed on Schedule 5.13, the Seller has performed in all material respects all 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 material default or breach under any Material Contract; and no event has occurred which with the passage of time or the giving of notice or both would result in a material default or breach under any such Material Contract. To the Knowledge of the Seller, no other party is) to any Material Contract is in default under or in breach of such Material Contract and no event has occurred which with the passage of time or violation of, giving of notice or both would result in a material default under, or breach under any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesContract.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 3.16 3.13a) in the Disclosure Schedule sets forth all Contracts presently in effect a list as of the date of this Agreement of each of the following types of contracts to which Seller the Company or any of its Subsidiaries is a party (other than purchase orders, statements of work and similar agreements and other than Employee Benefit Plans or International Plans listed on Schedule 3.17 in connection with the Business, including, without limitation, any written or oral:Disclosure Schedule):
(ai) commitmentany employment agreement, contractemployment contract or consulting agreement with any director, noteofficer, loan, evidence employee or individual independent contractor of indebtedness, purchase order the Company or letter any of credit involving any obligation or its Subsidiaries pursuant to which the Company and its Subsidiaries have future liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 250,000 per annum to such director, officer, employee or independent contractor and is not cancelable without liability within 30 terminable by the Company and its Subsidiaries upon notice of sixty (60) calendar days or less for a cost of less than $250,000;
(Schedule 3.16 indicates ii) any covenant not to compete, or exclusive right or license, granted by the Company or any of its Subsidiaries in favor of a third party;
(iii) any agreement or group of related agreements with respect to each a single transaction or series of related transactions under which (A) the Company or any of its Subsidiaries is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by a third party or (B) the Company or any of its Subsidiaries is a lessor or sublessor of, or makes available for use by any third party, any tangible personal property owned or leased by the Company or such lease listed thereon a general description of the leased itemsSubsidiary, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect case which has future liability to the Business with a gross value to Seller Company and its Subsidiaries in excess of $2,000 250,000 per year annum and is not terminable by the Company and its Subsidiaries upon notice of sixty (Schedule 3.16 sets forth all such contracts with customers 60) calendar days or less for a cost of less than $250,000;
(iv) any agreement or contract under which the Company or any of its Subsidiaries has borrowed any money or issued any note, indenture or other evidence of Indebtedness or guaranteed Indebtedness or liabilities of others (other than agreements solely among the Company and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract its Subsidiaries, endorsements for the period following the period covered thereby and (ii) such contract permits such customer purpose of collection, purchases of equipment or supplier to terminate such contract on 60 days' notice materials made under conditional sales contracts or less); and
(g) contracts and commitments not otherwise described surety bonds, performance bonds or similar instruments, in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not each case in the ordinary course of business; it being understood business and not exceeding $500,000 in the aggregate for all such agreements, endorsements, purchases and instruments);
(v) any partnership, strategic alliance or joint venture agreement;
(vi) any agreement (other than any standard purchase order or pricing agreement) for the sale, distribution, servicing by the Company and its Subsidiaries of goods or services that with respect provides for payments to each category listed above the Company or any of its Subsidiaries in excess of $300,000 per annum and is not terminable by the Company and its Subsidiaries upon notice of sixty (60) calendar days or less for which a dollar amount threshold has been established, cost of less than $300,000;
(vii) any item within such category agreement with a value Key Customer or Key Supplier;
(viii) any agreement granting any third party the exclusive right to purchase or distribute the Company’s or any of its Subsidiaries’ products or services;
(ix) any agreement pursuant to which the Company or any of its Subsidiaries has provided a “most favored nation” provision to the other party;
(x) any agreement that obligates the Company or any of its Subsidiaries to make any earn-out or similar payments based on future performance of an acquired business or assets;
(xi) any agreement for the purchase by the Company and its Subsidiaries of goods or services that provides for annual payments by the Company and its Subsidiaries in excess of $300,000 and is not terminable by the Company and its Subsidiaries upon notice of sixty (60) calendar days or less for a cost of less than $300,000;
(xii) any agreement that contains any revenue sharing or profit sharing provisions; or
(xiii) any settlement agreement entered into within the dollar amount specified shall past three (3) years and providing for payments by or to the Company or any of its Subsidiaries in excess of $300,000 or otherwise imposing material non-monetary restrictions on the business of the Company and its Subsidiaries.
(b) The Company has made available for inspection by Parent a true and correct copy of each contract, lease, license, instrument or other agreement listed or required to be deemed immateriallisted on Schedule 3.13a) in the Disclosure Schedule and the Scheduled Company IP Agreements (collectively, the “Material Contracts”). Seller is not (Except as disclosed on Schedule 3.13b) in the Disclosure Schedule, the Company or the applicable Subsidiary party thereto, and, to the best knowledge Knowledge of the StockholderCompany, no other party iseach applicable counterparty, has performed all material obligations required to be performed by it to date under the Material Contracts and is not (with or without the lapse of time or the giving of notice, or both) in material breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effectthereunder. Each Material Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreementon the Company or the applicable Subsidiary party thereto, arrangement or commitment of Seller is in full force and effect and is enforceable against Seller in accordance with its respective terms, and isthe Company or the applicable Subsidiary party thereto and, to the best knowledge Knowledge of Seller and the StockholderCompany, a legalthe counterparties thereto, valid and binding agreement, arrangement or commitment of in each other party thereto enforceable against such other parties, case except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or Laws affecting creditors' ’ rights generally and except as by general equitable principles.
(c) The Company has made available for inspection by Parent a true and correct copy of the Equity Agreements and the Company or the applicable Subsidiary party thereto and, to the availability Knowledge of equitable remediesthe Company, any other party thereto, have performed all material obligations required to be performed by such Person to date under the Equity Agreements and is not in material breach or default thereunder. The Equity Agreements shall terminate upon the Effective Time, with no further liability on the Company or any of the Company’s Subsidiaries, except for those provisions of the Equity Agreements that survive such termination in accordance with their terms.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets i. All of the contracts of the Company and its Subsidiaries that are required to be described in the documents described under paragraph 5V hereof (the "SEC Documents") or to be filed as exhibits thereto are described in the ------------- SEC Documents or filed as exhibits thereto, and (except as set forth on the attached "Contracts Schedule") all such contracts required to be filed as ------------------ exhibits thereto are valid, binding and enforceable in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, similar laws affecting creditors' rights generally or general principles of equity. True and complete copies of all such contracts have been made available to Purchaser. Neither the Company nor any of its Subsidiaries is in breach of or in default under any such contract, nor, to the knowledge of the Company, is any other party in material breach of or in default under any such contract.
ii. Except as expressly contemplated by this Agreement or as set forth on the attached "Contracts presently in effect to which Seller Schedule" or the attached "Employee Benefits ------------------ ----------------- Schedule," neither the Company nor any Subsidiary is a party in connection with to or bound by, nor -------- are any assets, properties or operations of the Business, including, without limitationCompany or any of its Subsidiaries bound by, any written or oral:
(a1) commitmentemployment, contractnon-competition, note, loan, evidence of indebtedness, purchase order consulting or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeseverance agreement;
(b2) lease of real property;
(3) lease of personal property with respect to the Business involving any an annual expense in excess base rental obligation of more than $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon 100,000 or a general description total remaining rental obligation of the leased items, term, annual rent and renewal options)more than $250,000;
(c4) material governmental joint venture or regulatory licenses or permits required to conduct the Business as presently conductedpartnership agreement;
(d5) contracts agreement with a term of more than six months which is not terminable by the Company or agreements any Subsidiary upon less than 30 days' notice without penalty or damages, and which involves an obligation of the Company of more than $100,000;
(6) agreement containing covenants limiting the freedom ability of Seller the Company or any of its Subsidiaries to engage compete in any line of business or compete with any personPerson in any area or territory;
(e7) employment contractscontract involving any commitment of suretyship, including guaranty or indemnification by the Company;
(8) 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 arrange ments;
(9) contract under which the Company or Subsidiary has advanced or loaned, or made any Investment in, any other Person (other than a Wholly Owned Subsidiary) of amounts in the aggregate exceeding;
(10) agreement under which it has granted any Person any registration rights (including, without limitation, contracts to employ executive officers demand and other contracts with officers or directors of Seller;piggyback registration rights); or
(f11) contracts with customers and suppliers agreement related to hazardous waste disposal, solid waste disposal, wastewater management, investigation of Seller with respect to the Business with a gross value to Seller in excess environmental matters, environmental remediation, employment of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation environmental consultants, or any other environmental obligation, liability or agreement.
iii. Except as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is would not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, either individually or in the aggregate, ) have a Seller Material Adverse Effect. Each Contract or other instrument: all of the contracts, obligationagreements and instruments set forth on the Contracts Schedule are valid, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid binding and binding agreement, arrangement or commitment of Seller ------------------ enforceable against Seller in accordance with its their respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally or general principles of equity; the Company and except each Subsidiary have performed all obligations required to be performed by them under the contracts, agreements and instruments required to be 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, agreement or instrument required to be 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, breach or event of noncompliance by the Company or any Subsidiary under any contract, agreement or instrument required to be listed on the Contracts Schedule; neither the Company nor any Subsidiary has any present ------------------ expectation or intention of not fully performing all such obligations; neither the Company nor any Subsidiary has knowledge of any breach or anticipated breach by the other parties to any contract, agreement, instrument or commitment required to be listed on the Contracts Schedule; and neither the Company nor any Subsidiary is a party to any ------------------ contract requiring it to purchase or sell goods or services or lease property above or below (as the case may be) prevailing market prices and rates.
iv. The Purchasers' special counsel has been given the opportunity to review a true and correct copy of each of the availability written instruments, plans, contracts and agreements and an accurate description of equitable remedies.each of the oral arrangements, contracts and agreements which are referred to on the Contracts --------- Schedule, together with all amendments, waivers or other changes thereto. --------
Appears in 1 contract
Sources: Stock and Warrant Purchase Agreement (Krasovec Frank P)
Contracts and Commitments. (a) Schedule 3.16 sets forth 3.11(a) attached hereto contains an accurate and complete list of all Contracts presently in effect related to the Subject Business and meeting any of the descriptions set forth below to which Seller or any Subsidiary is a party in connection with or bound or by which any of the BusinessPurchased Assets are subject or bound, includingor pursuant to which Seller or any Subsidiary is a beneficiary (the “Purchased Contracts”):
(i) Contracts obligating Seller to pay, without limitationas guarantor or otherwise, any written indebtedness or oral:in any way creating any Lien on any of the Purchased Assets;
(aii) commitmentLicenses In, contractLicenses Out or royalty Contracts;
(iii) Management, noteconsulting or advisory Contracts;
(iv) Contracts for the purchase or sale of supplies or products or for the furnishing or receipt of services which has a minimum duration of one year or more or involves a sum in excess of $25,000, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect in each case to the Business extent any such Contract is not terminable by Seller without the payment of any fee or other amount on no more than $5,000 thirty (and not more than $10,000 in the aggregate30) and not cancelable (without liability) on not more than 30 days' days notice;
(bv) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants Contracts limiting the freedom of Seller Seller, or that would limit the freedom of Buyer after the Closing Date, to freely engage in any line of business or compete with any personPerson anywhere in the world;
(evi) employment contractsContracts relating to the distribution, marketing, advertising or sales of the Software Products, including without limitation, contracts to employ executive officers and other contracts Contracts with officers sales representatives or directors of Selleragents;
(fvii) contracts with customers and suppliers Contracts pursuant to which Seller subcontracts work to third-parties;
(viii) power of Seller with respect attorney;
(ix) Contracts relating to the acquisition or sale of any portion of the Subject Business or the Software Products;
(x) any employment Contract or severance agreement with a gross value to Seller any Hired Employee;
(xi) any Service Contract with an aggregate amount payable in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts 10,000; provided, however, that only Service Contracts with customers and suppliers currently an aggregate amount payable in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or excess of $50,000 are listed on Schedule 3.16 3.11(a).
(including purchase ordersxii) the Real Estate Lease; or
(xiii) other Contracts material to the Subject Business.
(b) Seller has made available to Buyer complete and correct copies of each Purchased Contract, franchise agreements together with all amendments, waivers and undertakings or commitments other changes thereto, and a complete and correct description of all material terms of all oral Purchased Contracts. No Purchased Contract has been canceled or, to Seller’s Knowledge, breached by the other party, and Seller has no Knowledge of any planned breach by any other party to any Governmental Entity) relating Purchased Contract. Since December 31, 2008, to Seller’s Knowledge, except as set forth on Schedule 3.11(b), no customer, supplier or distributor of the Subject Business has indicated in writing or otherwise affecting orally to Seller that it intends to stop or materially decrease the Business under contracts rate of business done with Seller or that it desires to renegotiate its Contract with Seller or that it would not do business with Buyer. Seller has performed all obligations required to be performed by it in connection with the Purchased Contracts and is not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) default under or in breach of any Purchased Contract, and no event or violation of, condition has occurred or arisen which with the passage of time or the giving of notice or both would result in a default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effectthereunder. Each Purchased Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreementvalid, arrangement or commitment of Seller binding, enforceable against Seller in accordance with its respective terms, and is, subject to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or and similar laws of general applicability relating to or affecting creditors' ’ rights generally and except to general principles of equity and in full force and effect and, subject to Section 2.12, will continue as such following the consummation of the transactions contemplated hereby.
(c) All Software Products sold by the Seller have been sold pursuant to Seller’s standard End User License Agreement in the form attached to Schedule 3.11(c), with no material modification to the availability terms thereof, including terms relating to Seller’s right to assign such End User License Agreement.
(d) To Seller’s Knowledge, there is no reason to believe that Buyer will be unable (i) to obtain, on monetary terms consistent with those currently in effect with Seller, a written maintenance agreement with any customer of equitable remediesthe Subject Business who is not currently a party to a written Service Contract, and (ii) to the extent necessary, to obtain, without the payment or provision by Buyer of any sums or inducements, written consents to any transfer of the customer relationship as contemplated hereby.
(e) Schedule 3.11(e) sets forth a complete and correct list of each Purchased Contract that requires a consent or other action by any Person as a result of the execution, delivery and performance of this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Bio Key International Inc)
Contracts and Commitments. Schedule 3.16 sets (a) Except as set forth all Contracts presently in effect to which Seller on Section 6.7(a) of the Disclosure Schedules, neither the Company Group nor any of its Subsidiaries is a party to or bound by any:
(i) Contract under which the Company Group or any of its Subsidiaries has advanced or loaned any other Person any amount or contract under which any Person would be deemed to have Indebtedness to the Company Group or any of its Subsidiaries, in each case in excess of $50,000, other than any such contract between the Company Group and any of its Subsidiaries and any Subsidiary of the Company Group and another Subsidiary of the Company Group;
(ii) Contract relating to Indebtedness or the mortgaging of, pledging or otherwise placing an Encumbrance (other than Permitted Encumbrances) on any asset or group of assets of the Company Group or any of its Subsidiaries in excess of $100,000;
(iii) Contract under which the Company Group or any of its Subsidiaries is lessee of or holds or operates any tangible property, real or personal, owned by any other party thereto, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $100,000;
(iv) Contract under which the Company Group or any of its Subsidiaries is lessor of or permits any third party to hold or operate any tangible property, real or personal, owned or controlled by the Company Group or any of its Subsidiaries under which the aggregate annual rental payments to the Company Group or any of its Subsidiaries do not exceed $100,000;
(v) Contract with customers of the Company Group or any of its Subsidiaries not completed as of a date five days prior to the date of this Agreement for the purchase of a Business Product or rendering of services involving payments to the Company Group or any of its Subsidiaries in excess of $500,000;
(vi) Contract for the purchase of equipment or other materials or services by the Company Group or any of its Subsidiaries where the purchase price under any such Contract exceeds $250,000 where performance by the supplier is not completed as of a date five days prior to the date of this Agreement;
(vii) Contract prohibiting the Company Group or any of its Subsidiaries from freely engaging in any business activity or line or competing anywhere in the world, or from soliciting or hiring any Person;
(viii) Contract for the employment of any officer, individual employee or other person on a full-time or consulting basis providing for annual base compensation in excess of $125,000 or that are not terminable without payment of any severance or penalty other than as required by any Law;
(ix) Contract with a Governmental Authority;
(x) Contract providing for payment or acceleration of benefits as a result of the transactions contemplated by this Agreement;
(xi) guaranty of any obligation for any Indebtedness of a Person or other guaranty of obligations of a Person, other than guaranties by the Company Group of obligations of one or more of its Subsidiaries, or guaranties by a Subsidiary of the Company Group of obligations of the Company Group or of other Subsidiaries of the Company Group;
(xii) other than a Commercial Software Contract, Contract relating to the licensing of Intellectual Property Rights by a Person to the Company Group or any of its Subsidiaries involving annual consideration in excess of $50,000;
(xiii) Contract transferring ownership of, or granting a license or right to use, any Intellectual Property Rights of the Company Group or any of its Subsidiaries to any other Person, including each Contract granting an exclusive license or an exclusive right to use;
(xiv) Contract for any joint venture, partnership, profit sharing or other strategic arrangement;
(xv) Contract with any distributor, manufacturer’s representative or dealer or with any broker or sales agent providing for bonus, incentive, commission, or similar payments;
(xvi) Contract providing for capital expenditures or the acquisition or construction of fixed assets for the benefit and use of the Company Group or any of its Subsidiaries in excess of $100,000 in any year;
(xvii) Contract relating primarily to confidentiality or nondisclosure, other than employee, independent contractor, customer or supplier Contracts entered into in the Ordinary Course of Business and other than any Contracts relating primarily to confidentiality or nondisclosure entered into in connection with the potential sale of the Company Group;
(xviii) Contract relating to any future acquisition (or, to the extent that the Company Group or any of its Subsidiaries has any surviving indemnification, payment or other Liabilities or other obligations or any material rights thereunder, relating to any past acquisition) by the Company Group or any of its Subsidiaries of any operating business or the assets or share capital of any other Person;
(xix) Contract for the sale or other transfer of any tangible assets (other than pursuant to any customer Contract) having a fair market value in excess of $25,000;
(xx) Contract with a customer of the Company Group or any of its Subsidiaries providing for “master” terms and conditions of sale applicable to all sales of goods or provision of services to such customer;
(xxi) Contract involving the settlement, release, compromise or waiver of any material rights, claims, obligations, duties or Liabilities;
(xxii) Contract with any labor union or employee representative of a group of employees;
(xxiii) Contract containing an effective power of attorney granted by the Company Group or any of its Subsidiaries;
(xxiv) written commitment to enter into any agreement of the type described in the immediately preceding clauses (i) through (xxiv); or
(xxv) other Contract which is otherwise material to the Business, includingtaken as a whole (all of the foregoing referenced Contracts, without limitationcollectively, any written or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;“Material Contracts”).
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description Each of the leased itemsMaterial Contracts is in full force and effect, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct is the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreementobligation of the Company Group or its Subsidiaries which is or are party thereto, arrangement or commitment and, to the knowledge of Seller the Company Group, of the other parties thereto enforceable against Seller each of them in accordance with its respective terms. Neither the Company Group nor any of its Subsidiaries is in default under any Material Contract, and isand, to the best knowledge of Seller the Company Group, the other parties to each of the Material Contracts are not in default thereunder. To the knowledge of the Company Group, no event, condition or occurrence exists which (with or without notice or lapse of time) would constitute a default under any of the Material Contracts. No party to any of the Material Contracts has exercised any termination rights with respect thereto, and no party has given written notice of any significant dispute with respect to any Material Contract. The Company Group has provided to the StockholderBuyers true, a legal, valid correct and binding agreement, arrangement or commitment complete copies of each other party Material Contract, together with all amendments, modifications or supplements thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesin effect.
Appears in 1 contract
Contracts and Commitments. (a) Except as listed and described on Schedule 3.16 sets forth all Contracts presently in effect to which 5.17, the Seller is not a party to any of the following contracts, commitments or understandings, whether oral or in connection with writing (collectively, the "Contracts"), and whether or not assumed by Buyer, relating to the Business, including, without limitation, any written or oralcopies of which have been delivered to Buyer:
(ai) commitment, contract, note, loan, evidence of indebtedness, purchase order employment or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeconsulting Contract;
(bii) lease purchase orders or commitments with suppliers and contractors seeking delivery or the providing of personal property with respect to services more than sixty (60) days from the Business date hereof or involving any annual expense an amount in excess of $5,000 and not cancelable without liability within 30 25,000 for any supplier or contractor;
(iii) Contract for furnishing goods or the rendition of services by the Seller for a date more than sixty (60) days from the date hereof or involving an amount in excess of $15,000 for any customer;
(Schedule 3.16 indicates iv) Contract involving the receipt of payments with respect to each such lease listed thereon a general description of goods to be sold or services to be performed in the leased items, term, annual rent and renewal options)future;
(cv) material governmental representative, sales agency or regulatory licenses distribution Contract, not terminable by Seller on thirty (30) days notice or permits required less without cost or liability to conduct the Business as presently conductedSeller;
(dvi) contracts lease under which Seller is either the lessor or agreements containing covenants lessee relating to real or personal property;
(vii) advertising Contract;
(viii) Contract limiting the freedom of Seller to engage or restraining in any line respect Seller, Hirschson or any of Seller's employees from engaging or competing in any lines of business or compete with any person;
(eix) employment contracts, including without limitation, contracts to employ executive officers and Contract with any labor union or other contracts with officers or directors of Sellerlabor organization;
(fx) contracts with customers and suppliers of Seller with respect any Contract entered into or to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not be performed otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not than in the ordinary course of business; it being understood that the Business.
(b) The Contracts on Schedule 5.17 which are to be assumed by Buyer are so designated on such schedule. Except as specifically so indicated none of the Contracts listed on such schedule are Assumed Contracts.
(c) Except as may be otherwise set forth on Schedule 5.17, with respect to each category Contract listed above for which a dollar amount threshold has been established, any item within such category on Schedule 5.17 and with a value less than the dollar amount specified shall respect to each Contract not required to be deemed immaterial. Seller is not (andso listed, to the best knowledge of Seller's knowledge: (i) Seller is in compliance with the provisions of each such Contract; (ii) no party to any such Contract is in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained therein; and (iii) no event has occurred which with or without the giving of notice or lapse of time, or both, would constitute a default thereunder by any Contract party.
(d) The consideration to be received by Seller for all unfinished Contracts under which Seller was to provide goods or services was determined by Seller at the time of its entry into such Contract in such manner as to provide it with a fair and reasonable return over and above the cost of completing such Contract and Seller has no reason to believe that as of the Stockholderdate hereof or at the Closing, no other party is) in breach that the costs to complete any such Contract are or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar would be materially higher than those as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesoriginally estimated.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hertz Technology Group Inc)
Contracts and Commitments. Schedule 3.16 4.12 sets forth a true, complete and correct list and description of each of the following Contracts of each of the Seller Group Subsidiaries (such Contracts, together with all Contracts presently relating to Intellectual Property set forth in effect Schedule 4.14, being “Material Contracts”):
(i) each Contract involving aggregate consideration in excess of $25,000 and which, in each case, cannot be cancelled by the Seller Group Subsidiary without penalty or without more than 90 days’ notice;
(ii) all Contracts that require the Seller Group Subsidiary to purchase its total requirements of any product or service from a third party or that contain “take or pay” provisions;
(iii) all Contracts that provide for the indemnification by the Seller Group Subsidiary of any Person or the assumption of any Tax, environmental or other liability of any Person;
(iv) all Contracts that relate to the acquisition or disposition of any business, a material amount of shares or assets of any other Person or any real property (whether by merger, sale of shares, sale of assets or otherwise);
(v) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which the Seller Group Subsidiary is a party;
(vi) all employment agreements and Contracts with independent contractors or consultants (or similar arrangements) to which the Seller Group Subsidiary is a party in connection with the Businessand which are not cancelable without material penalty or without more than 90 days’ notice;
(vii) except for Contracts relating to trade receivables, all Contracts relating to Indebtedness (including, without limitation, any written or oral:
(aguarantees) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeGroup Subsidiary;
(bviii) lease of personal property all Contracts with respect any Governmental Body to which the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon Seller Group Subsidiary is a general description of the leased items, term, annual rent and renewal options)party;
(cix) material governmental all Contracts that limit or regulatory licenses or permits required purport to conduct limit the Business as presently conducted;
(d) contracts or agreements containing covenants limiting ability of the freedom of Seller Group Subsidiary to engage compete in any line of business or compete with any personPerson or in any geographic area or during any period of time;
(ex) employment contractsany Contracts to which the Seller Group Subsidiary is a party that provide for any joint venture, including without limitation, contracts to employ executive officers and other contracts with officers partnership or directors of Sellersimilar arrangement by the Seller Group Subsidiary;
(fxi) contracts with customers all Contracts between or among the Seller Group Subsidiary on the one hand and suppliers Seller or any Affiliate of Seller (other than the Seller Group Subsidiary) on the other hand;
(xii) all collective bargaining agreements of each Seller Group Subsidiary with respect any labor organization, union or association to which the Business with Seller Group Subsidiary is a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less)party; and
(gxiii) contracts any other Contract that is material to the Company and commitments not otherwise described in previously disclosed pursuant to this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect4.12. Each Material Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of on the Seller enforceable against Seller Group Subsidiary in accordance with its respective terms, terms and isis in full force and effect. None of the Seller Group Subsidiaries or, to the best knowledge of Seller and the StockholderSeller’s Knowledge, a legal, valid and binding agreement, arrangement or commitment of each any other party thereto enforceable against such is in breach of or default under (or is alleged to be in breach of or default under), or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination thereof or would cause or permit the acceleration or other partieschanges of any right or obligation or the loss of any benefit thereunder. Complete and correct copies of each Material Contract (including all modifications, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally amendments and except as supplements thereto and waivers thereunder) have been made available to the availability Buyer Parties. The execution and implementation of equitable remediesthis Agreement and the Related Documents by the Seller will not constitute a breach of any of the Seller Group Subsidiaries’ contractual obligations, nor will the execution and implementation of this Agreement and the Related Documents by the Seller entitle any Person to terminate or vary any Contract.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect to which Seller is a party in connection with the Business, including, without limitation, any written or oral:
(a) commitmentExcept as set forth in Schedule 4.13, contractTexas Mortgage is not a party to any: (i) contract for the employment of any officer, noteemployee, loan, evidence of indebtedness, purchase order or letter of credit involving other person on a full-time or consulting basis or relative to severance pay or change-in-control benefits for any obligation such person; (ii) agreement or liability on the part of Seller with respect indenture relating to the Business borrowing of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense money in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect 25,000 or to each such lease listed thereon mortgaging, pledging or otherwise placing a general description lien on any assets of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with Texas Mortgage which has a gross fair market value to Seller in excess of $2,000 per year 25,000 in the aggregate; (Schedule 3.16 sets forth all such iii) guaranty of any obligation for borrowed money or otherwise, other than endorsements made for collection, or any indemnity agreement; (iv) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal; (v) contract or group of related contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract the same party for the purchase or sale of products, services, mortgages or deeds of trust under which the undelivered balance of such 16 items has a purchase price in excess of $25,000; (vi) any other contract or group of related contracts with the same party continuing over a period following of more than six (6) months from the period covered thereby and date or dates thereof or involving more than $25,000; or (iivii) such contract permits such customer or supplier other agreement material to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments Texas Mortgage's business not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not entered into in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold .
(b) Texas Mortgage has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, attached to the best knowledge Schedule 4.13 or otherwise furnished to Monterey a true and correct copy of each written contract or commitment, and a written description of each oral contract or commitment, referred to in this Section 4.13, together with all amendments, waivers or other changes thereto.
(c) Except as specifically disclosed in Schedule 4.13: (i) since the date of the StockholderMarch 1997 Balance Sheet, no other party issignificant customer or supplier has indicated that it will stop or decrease the rate of business done with Texas Mortgage, except for changes in the ordinary course of Texas Mortgage's Business; (ii) Texas Mortgage has performed all material obligations required to be performed by it in breach or violation of, or default under, any of connection with the Contracts or other instruments, obligations, evidences of indebtedness contracts or commitments described in paragraphs herein and Texas Mortgage has not been advised of or received any claim of default under any such contract or commitment; (a)-(giii) above, where such Texas Mortgage has no present expectation or intention of not fully performing any obligation pursuant to any contract or commitment; and (iv) Texas Mortgage has no Knowledge of any breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each anticipated breach by any other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium to any contract or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediescommitment.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect (a) All contracts, agreements and commitments to which Seller the Company or any Subsidiary is a party or is bound (and which provide for payment by the Company or any Subsidiary or receipt by the Company or any Subsidiary of more than $100,000 over the life of the contract, agreement or commitment or which are otherwise material to the Company and the Subsidiaries, taken as a whole) are listed in connection Schedule 6.9 of the Company Disclosure Schedule.
(b) Neither the Company nor any Subsidiary is a party to or bound by any agreements, contracts or commitments which individually or when aggregated with all related agreements, contracts or commitments, provide for the grant of any preferential rights to purchase or lease any of the Company's or any Subsidiary's assets.
(c) The Company has delivered or made available to Parent and Sub true and complete copies of each written agreement, contract or commitment listed in Schedule 6.9 of the Company Disclosure Schedule, as well as true and accurate summaries of any oral agreement listed thereon.
(d) The enforceability of the agreements, contracts and commitments referred to in this Section 6.9 will not be affected in any respect by the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
(e) No purchase contracts or commitments of the Company or any Subsidiary are in excess of the normal, ordinary and usual requirements of the Company or any Subsidiary, or to the best knowledge of the Company, were entered into at prices in excess of those available in the industry in arm's length transactions on the respective dates thereof.
(f) Except as set forth in Schedule 6.9(f), neither the Company nor any Subsidiary is a party to or bound by any outstanding agreements, arrangements or contracts with any of its officers, directors, employees, agents, consultants, advisors or sales representatives (or any affiliates of such persons) that (i) are cancelable by it only upon notice of longer than 30 days and with the Businessimposition of a liability, penalty or premium, (ii) require non-cancelable payment by the Company or any Subsidiary of over $50,000, or (iii) provide for any bonus or other payment based on the sale of the Company or any portion thereof.
(g) Except as set forth in Schedule 6.9(f), neither the Company nor any Subsidiary is a party to or bound by any employment agreement, consulting agreement or any other agreement that contains any provision for severance or termination pay liabilities or obligations (including, without limitation, change of control or "golden parachute" provisions).
(h) Neither the Company nor any written Subsidiary is a party to or oralbound by:
(ai) commitmentany material mortgage, contractindenture, note, loan, evidence of indebtedness, purchase order or letter of credit involving any installment obligation or liability on other instrument, agreement or arrangement for or relating to any borrowing of money by the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeCompany or any Subsidiary;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer any guaranty, direct or supplier to terminate such contract on 60 days' notice indirect, by the Company or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 any Subsidiary of any material obligation for borrowings or listed on Schedule 3.16 (including purchase ordersotherwise, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not excluding endorsements made for collection in the ordinary course of business; it being understood that ;
(iii) any obligation to make payments, contingent or otherwise, of over $100,000 in the aggregate arising out of any prior acquisition of the business, assets or stock of other persons, other than with respect to each category listed above for which a dollar amount threshold has been establishedacquisitions of food or supplies in the ordinary course of business;
(iv) any collective bargaining agreement with any labor union;
(v) except as set forth in Schedule 6.9(h)(v), any item within such category with a value less than agreement containing noncompetition or other limitations restricting the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge conduct of the Stockholderbusiness of the Company or any Subsidiary; and
(vi) except as set forth in Schedule 6.2, no other party isany partnership, joint venture or similar agreement.
(i) in breach Neither the Company nor any Subsidiary is bound by any agreement or violation of, or default under, arrangement for the sale of any of the Contracts assets or other instrumentscapital stock of the Company or the Subsidiaries or for the grant of any preferential rights to purchase any of the assets or capital stock of the Company or the Subsidiaries.
(j) With respect to each contract and agreement listed in Schedule 6.9 of the Company Disclosure Schedule, obligationsexcept as set forth therein, evidences (i) each of indebtedness such contracts and agreements is valid, binding and in full force and effect and is enforceable by the Company (or commitments described in paragraphs (a)-(gits Subsidiary, as the case may be) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, subject to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar reorganization and other laws and judicial decisions of general applicability relating to or affecting creditors' rights generally and except as to the availability general principles of equitable remedies.equity;
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 (a) CONTRACTS. SCHEDULE 4.7 sets forth a complete and accurate list of all Contracts presently relating to the Business of the following categories, except for any Contracts entered into in effect to the ordinary course of the business which may be terminated by Seller is a party in connection with the Business, including, on less than thirty (30) days notice without limitation, any written or oralpenalty:
(ai) commitmentContracts not made in the ordinary course of the Business;
(ii) Employment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any consulting and independent contractor contracts with an annualized payment obligation or liability on the part of Seller thereunder in excess of $10,000.00 and severance agreements, including without limitation contracts (A) to employ or terminate executive officers or other personnel and other contracts with present or former officers, directors or shareholders of Seller or (B) that will result in the payment by, or the creation of any Liability to pay on behalf of Buyer or Parent or BBI Biotech any severance, termination, parachute payments within the meaning of the Code, or other similar payments to any present or former personnel following termination of employment or otherwise as a result of the consummation of the transactions contemplated by this Agreement;
(iii) Labor or union contracts;
(iv) Distribution, supply, purchase, development, OEM franchise, license, technical assistance, sales, commission, consulting, agency or advertising contracts related to the Purchased Assets or the Business other than purchase orders received or written in the ordinary course of business;
(v) Options with respect to the Business purchase of more than $5,000 (and not more than $10,000 in any property, real or personal, whether Seller shall be the aggregate) and not cancelable (without liability) on not more than 30 days' noticegrantor or grantee thereunder;
(bvi) lease of personal property with respect to the Business Contracts involving any annual expense future expenditures or Liabilities, actual or potential, in excess of $5,000 10,000.00 or otherwise material to the Business or the Purchased Assets and not cancelable without liability Liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)calendar days;
(cvii) material governmental Contracts or regulatory licenses or permits required commitments relating to conduct the Business as presently conductedcommission arrangements with others;
(dviii) contracts Promissory notes, loans, agreements, indentures, evidences of indebtedness, letters of credit, guarantees, or agreements other instruments relating to an obligation to pay money, individually in excess of $5,000.00 or in the aggregate in excess of $15,000.00, whether Seller shall be the borrower, lender or guarantor thereunder or whereby any Purchased Assets are pledged excluding credit provided by Seller in the ordinary course of business to purchasers of its products;
(ix) Contracts containing covenants limiting the freedom of Seller or any officer, director, employee or affiliate of Seller to engage in any line of business or compete with any person;
(ex) employment contractsAny Contract with the United States, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Sellerany state or local government or any agency or department thereof;
(fxi) contracts Leases of real property;
(xii) material Leases of personal property;
(xiii) Any Contract that grants a power of attorney, agency or similar authority to another person or entity;
(xiv) Any Contract with customers and suppliers an Affiliate of Seller with respect to the Business with a gross value to Seller in excess or any Subsidiary or any Representative of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer Seller, any Subsidiary or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less)any of their respective Affiliates; and
(gxv) contracts All other material Contracts (including all Government Contracts). Except for the Incomplete Contracts, Seller has delivered to Buyer true, correct and commitments not otherwise described in this Section 3.16 or complete 24 copies of all of the written Contracts and Leases listed on Schedule 3.16 (SCHEDULE 4.7, including purchase orders, franchise agreements all amendments and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediessupplements thereto.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect (a) All of the agreements, contracts and commitments to which Seller the Company is a party in connection or is bound, whether individually or when aggregated with the Businessall related agreements, includingcontracts or commitments, without limitation, any written or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect are material to the Business business, operations, condition (financial or otherwise), liabilities, assets, earnings or working capital of more than $5,000 (and not more than $10,000 the Company are described in Section 3.13(a) of the aggregate) and not cancelable (without liability) on not more than 30 days' notice;Disclosure Schedule.
(b) The Company is not a party to or bound by any agreements, contracts or commitments which individually or when aggregated with all related agreements, contracts or commitments, provide for the grant of any preferential rights to purchase or lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased itemsCompany Assets, term, annual rent and renewal options);except as described in Section 3.13(b) of the Disclosure Schedule.
(c) material governmental The Company has delivered or regulatory licenses made available to MSSC Texas or permits required to conduct Marketing Specialists true and complete copies of each written agreement, contract or commitment listed in Section 3.13(a) of the Business Disclosure Schedule, as presently conducted;well as true and accurate summaries of any oral agreement listed thereon.
(d) The enforceability of the agreements, contracts or agreements containing covenants limiting the freedom of Seller and commitments referred to engage in this Section 3.13 will not be affected in any line respect by the execution and delivery of business this Agreement or compete with any person;the consummation of the transactions contemplated hereby.
(e) employment contractsNo purchase contracts or commitments of the Company are in excess of the normal, including without limitationordinary and usual requirements of the Company, contracts or to employ executive officers and other contracts with officers or directors the best knowledge of Seller;the Company, were entered into at prices materially in excess of those available in the industry in arm's length transactions on the respective dates thereof.
(f) The Company is not a party to or bound by any outstanding agreements, arrangements or contracts with customers and suppliers any of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether its officers, employees, agents, consultants, advisors, salesmen or sales representatives that (i) such customer are not cancelable by it on notice of not longer than 30 days and without the imposition of any liability, penalty or supplier has renewed such contract for the period following the period covered thereby and premium, (ii) such contract permits such customer require non-cancelable payment by the Company of over $5,000, or supplier to terminate such contract (iii) provide for any bonus or other payment based on 60 days' notice the sale of the Company or less); andany portion thereof.
(g) contracts and commitments The Company is not otherwise described in this Section 3.16 a party to or listed on Schedule 3.16 bound by any employment agreement, consulting agreement or any other agreements that contains any provision for severance or termination pay liabilities or obligations.
(including purchase ordersh) The Company is not a party to or bound by:
(i) any mortgage, franchise agreements and undertakings indenture, note, installment obligation or commitments other instrument, agreement or arrangement for or relating to any Governmental Entityborrowing of money by the Company;
(ii) relating to any guaranty, direct or indirect, by the Business Company of any obligation for borrowings or otherwise affecting the Business under contracts not otherwise, excluding endorsements made for collection in the ordinary course of business;
(iii) any obligation to make payments, contingent or otherwise, of over $5,000 arising out of any prior acquisition of the business, assets or stock of other persons;
(iv) any collective bargaining agreement with any labor union;
(v) any lease or similar arrangement for the use by the Company of personal property requiring payments by the Company, on an annual basis, of over $10,000;
(vi) any agreement containing noncompetition or other limitations restricting the conduct of the business of the Company; it being understood that with and
(vii) any partnership, joint venture or similar agreement.
(i) Neither the Company nor any of its officers, directors, shareholders or affiliates is a party to or bound by any agreement (other than this Agreement) or arrangement for the sale of any of the assets or capital stock of Tower or the Subsidiaries or for the grant of any preferential rights to purchase any of the assets or capital stock of Tower or the Subsidiaries.
(j) The Company is not bound by any agreement to redeem the Tower Common Shares held by any shareholder, which agreement will not be effectively and properly terminated by the consummation of the Merger.
(k) With respect to each category contract and agreement listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge in Section 3.13 of the StockholderDisclosure Schedule, no other party isexcept as set forth therein, (i) each of such contracts and agreements is valid, binding and in breach or violation of, or default under, any of full force and effect and is enforceable by the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller Company in accordance with its respective terms, and is, subject to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws reorganization and other Laws and judicial decisions of general applicability relating to or affecting creditors' rights generally and except as to general principles of equity; (ii) there have been no cancellations or threatened cancellations thereof nor are there any outstanding disputes thereunder; (iii) neither the availability Company, nor any other party is in breach of equitable remediesany material provision thereof; and (iv) there does not exist any default under, or any event or condition which with the giving of notice or passage of time or both would become a breach or default under, the terms of any such contract or agreement on the part of the Company or on the part of any other party thereto.
Appears in 1 contract
Sources: Merger Agreement (Richmont Marketing Specialists Inc)
Contracts and Commitments. Schedule 3.16 sets forth 2.11 contains a true, complete and ------------------------- accurate list of all Contracts presently in effect contracts, agreements, instruments, leases, licenses, arrangements and understandings (whether written or oral) to which Seller ADI, any Subsidiary, Montvale GP or any LP is a party in connection with or by which any of its assets or properties are bound (i) the Businessremaining payments under which equal or exceed $50,000, including, without limitationor (ii) which are otherwise material to the business or operations of ADI, any Subsidiary or any LP (collectively, the "Material Contracts"). ADI has ------------------ furnished to the Purchaser (i) true and complete copies of all written Material Contracts, and (ii) true and complete written descriptions of all supply, distribution, agency financing, or oralother arrangements or understandings referred to in Schedule 2.11 to the extent such Material Contracts have not been fully reduced to writing. All Material Contracts are valid and in full force and effect. Except as set forth in such Schedule 2.11:
(a) commitmentneither ADI, contractany Subsidiary, noteMontvale GP nor any LP has any outstanding contracts with officers, loanemployees, evidence of indebtednessagents, purchase order consultants, advisors, salesmen, sales representatives, distributors or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and dealers that are not cancelable (by it on notice of not longer than 30 days and without liability) , penalty or premium or any agreement or arrangement providing for the payment of any bonus or commission based on not more than 30 days' noticesales or earnings;
(b) lease of personal property with respect to the Business involving neither ADI, any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased itemsSubsidiary, termMontvale GP nor any LP has any employment agreement, annual rent and renewal options)or any other agreement that contains any severance or termination pay liabilities or obligations;
(c) material governmental neither ADI, any Subsidiary, Montvale GP nor any LP has any collective bargaining or regulatory licenses union contracts or permits required to conduct the Business as presently conductedagreements;
(d) contracts or agreements containing covenants limiting the freedom neither ADI, any Subsidiary, Montvale GP nor any LP is in default, nor, to their knowledge, is there any basis for any valid claim of Seller to engage in default, under any line of business or compete with any person;
Material Contract; (e) employment contractsneither ADI, any Subsidiary, Montvale GP nor any LP has any indebtedness for borrowed money, including without limitation, contracts guarantees of or agreements to employ executive officers and other contracts with officers or directors acquire any such indebtedness of Sellerothers;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedies.
Appears in 1 contract
Sources: Stock Purchase Agreement (Medical Resources Inc /De/)
Contracts and Commitments. Except as disclosed on Schedule 3.16 sets forth all Contracts presently in effect to which Seller is a party in connection with 3.22 of the Business, including, without limitation, any written or oral:
Disclosure Schedule: (a) commitmentThe Company is not nor is any Subsidiary, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to its business, a party to any oral or written contract: (i) that prohibits the Business Company or any of more than $5,000 (and not more than $10,000 its Subsidiaries from freely engaging or competing in its line of business anywhere in the aggregateworld; (ii) and that is not cancelable on arms-length terms; (without liabilityiii) on not more than 30 days' notice;
pursuant to which the Company or any of its Subsidiaries has incurred or accrued losses; (biv) lease that by its terms may be terminated upon a change in control of personal property with respect the Company or any of its Subsidiaries; (v) that commits the Company or any of its Subsidiaries to purchase or sell any properties or assets outside of the Business involving any annual expense ordinary course of business for consideration in excess of $5,000 and not cancelable without liability within 30 days 100,000; (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(cvi) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default wouldinvolves an unfulfilled obligation, individually or in the aggregate, have in excess of $100,000 and is not terminable by the Company or any of its Subsidiaries upon less than 60 calendar days' notice for a Seller Material Adverse Effectcost of not less than $100,000; (b) Since December 31, 1997, none of the Company's or any of its Subsidiaries' significant customers, suppliers, outside service providers or sources of referral has indicated that it will stop or materially decrease the rate of business done with or referred to either the Company or any such Subsidiary. Each Contract 26
(c) To the Knowledge of the Company, neither the Company nor any of its Subsidiaries is obligated to (i) purchase any property or services at a price greater than the prevailing market price, (ii) sell any property or services at a price less than the prevailing market price, (iii) pay rentals or royalties at a rate greater than the prevailing market price or (iv) act as lessor or licensor at a rate less than the prevailing market price.
(d) Parent has been supplied with a true and correct copy of all written contracts which are referred to on Schedule 3.22, together with all amendments, exhibits, attachments, waivers or other instrumentchanges thereto. SECTION 3.23 Real Estate Leases. Schedule 3.23 hereto sets forth a list of (a) all leases and subleases under which the Company and its Subsidiaries is lessor or lessee of any real property together with all amendments, obligationsupplements, evidence nondisturbance agreements and other agreements pertaining thereto, (b) all options held by the Company and its Subsidiaries or contractual obligations on the part of indebtedness the Company and its Subsidiaries to purchase or commitment described acquire any interest in paragraphs real property and (a)-(gc) above all options granted by the Company and its Subsidiaries or contractual obligations on the part of the Company and its Subsidiaries to sell or dispose of any interest in real property. To the Company's knowledge, there is not any lien, claim, option, charge, security interest, limitation, encumbrance or restriction of any kind (any of the foregoing being a legal"Lien") on any of the leasehold interests set forth on Schedule 3.23 hereto except for (a) Liens reflected in the balance sheet included in the Company's SEC Documents, valid (b) Liens of record consisting of zoning or planning restrictions, easements, permits and binding agreementother restrictions or limitations on the use of real property which do not materially detract from the value of, arrangement or commitment a materially impair the use of, such property by the Company and its Subsidiaries in the operation of Seller enforceable against Seller their respective businesses, (c) Liens for current taxes, assessments or governmental charges or levies on property not yet delinquent or being contested in good faith and for which appropriate reserves have been established in accordance with its respective termsUnited States generally acceptable accounting principles (which contested levies are described on Schedule 3.23), and is(d) Liens imposed by law, to such as materialman's, mechanic's, carrier's, workers' and repairmen's Liens securing obligations not yet delinquent or being contested in good faith and for which appropriate reserves have been established in accordance with United States generally acceptable accounting principles or securing obligations not being paid in the best knowledge ordinary course of Seller business in accordance with customary and the Stockholdercommercially reasonable practice (collectively, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedies"Permitted Liens").
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets (a) Except as set forth all in SCHEDULE 2.19 ("Contracts presently in effect and Commitments"), the Sellers and each Acquired Company have provided Buyer with a complete, accurate list of, or made available to Buyer copies of each of the following (each a "Company Commitment") to which Seller an Acquired Company is a party or by which any of its properties is bound and which presently remains executory in connection with the Business, including, without limitation, any written whole or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether part: (i) such customer each partnership or supplier has renewed such contract for the period following the period covered thereby and joint venture agreement; (ii) such each guaranty or suretyship, indemnification or contribution agreement or performance bond (other than any Guaranty limited as to recourse to no more than Five Thousand Dollars ($5,000) and any Guaranty of any automobile or other vehicle retail installment sales contract permits such customer or supplier entered into and sold to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not a financial institution in the ordinary course of business); it being understood that (iii) each instrument, agreement or other obligation evidencing or relating to indebtedness of an Acquired Company involving more than Twenty-Five Thousand Dollars ($25,000) in any single case, or to money lent or to be lent to another Person involving more than One Hundred Thousand Dollars ($100,000) in the aggregate, other than any of its dealership customers in connection with the purchase, or the refinancing of the purchase, of any vehicle; (iv) each contract to purchase or sell real property; (v) each agreement with brokers of motor vehicles or sales or commission agents, public relations or advertising agencies, accountants or attorneys (other than in connection with this Agreement and the transactions contemplated hereby) involving total payments within any twelve (12) month period in excess of Ten Thousand Dollars ($10,000) and which is not terminable without penalty and no more than thirty (30) days' prior notice; (vi) each Related Party Agreement involving total payments within any twelve (12) month period in excess of Ten Thousand Dollars ($10,000) and which is not terminable without penalty on no more than thirty (30) days' prior notice; (vii) each contract containing any noncompetition agreement, covenant or undertaking; (viii) each dealer sales and service agreement to which an Acquired Company is a party and each other agreement providing for the purchase from a supplier of all or substantially all the requirements of an Acquired Company of a particular product or service; or (ix) each other agreement or commitment not made in the ordinary course of business which is material to the Acquired Companies.
(b) True, correct and complete copies of all written Company Commitments have heretofore been delivered or made available to Buyer. Except as accurately set forth in SCHEDULE 2.19: (i) there are no existing or asserted defaults, events of default or events, occurrences, acts or omissions that, with the giving of notice or lapse of time or both, would constitute defaults or events of default under any Company Commitment material to the Acquired Companies by an Acquired Company or, to the Knowledge of each Seller or Acquired Company, any other party thereto; and (ii) no penalties have been incurred, nor are amendments pending, with respect to each category listed above for which a dollar amount threshold has been establishedthe Company Commitments that are material to the Acquired Companies. All Company Commitments are in full force and effect and are valid and enforceable obligations of the Acquired Company, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge Knowledge of each Seller and Acquired Company, the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller parties thereto in accordance with its their respective termsterms and no defenses, and isoff-sets or counterclaims have been asserted or, to the best knowledge Knowledge of Seller and the StockholderAcquired Companies, may be made by any party thereto (other than by an Acquired Company), nor has an Acquired Company waived any rights thereunder, except as described in SCHEDULE 2.19.
(c) Except as disclosed in SCHEDULE 2.19 or contemplated hereby or by any other Transaction Document to which an Acquired Company or Stockholder is a legalparty, valid and binding agreement, arrangement none of the Acquired Companies or commitment Sellers has received notice of each any plan or intention of any other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as any Company Commitment that is material to the availability Acquired Companies to exercise any right to cancel or terminate that Company Commitment, and neither the Acquired Companies nor Sellers has Knowledge of equitable remediesany condition or state of facts which would justify the exercise of such a right.
Appears in 1 contract
Contracts and Commitments. Except (i) as set forth on Schedule 3.9 of the Company Disclosure Letter hereto, (ii) for employee benefit plans set forth on Schedule 3.16 sets forth all Contracts presently in effect of the Company Disclosure Letter and (iii) contracts entered into pursuant to which Seller the terms of Section 5.2 after the date hereof, neither the Company nor any of its Subsidiaries is a party in connection with the Business, including, without limitation, to any written or oral:
(a) commitment, contract, notepurchase order, loan, evidence of indebtedness, purchase order or letter of credit or agreement, other than as described in subsections (b) or (c) below, involving any obligation or liability on the part of Seller with respect to the Business Company or its Subsidiaries in excess of more than $5,000 (and not more than $10,000 in the aggregate) 250,000 and not cancelable (without liability) on within sixty (60) days, except for purchases made in the ordinary course of business in amounts not more than 30 days' noticesubstantially in excess of past practice;
(b) lease of personal real property with respect to the Business involving any an annual expense on the part of the Company or its Subsidiaries in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)250,000 per year;
(c) material governmental lease of personal property involving an annual expense on the part of the Company or regulatory licenses or permits required to conduct the Business as presently conducted;its Subsidiaries in excess of $250,000, which lease is not cancelable (without liability) within sixty (60) days; or
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect business not otherwise described above or listed on Schedule 3.9 of the Company Disclosure Letter relating to each category listed above for which a dollar amount threshold has been establishedthe businesses of the Company and its Subsidiaries and materially affecting the Company's and its Subsidiaries' businesses. Except as set forth on Schedule 3.9 of the Company Disclosure Letter, neither the Company nor any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller of its Subsidiar- ies is not (and, and to the best knowledge of the StockholderCompany, no other party is) in material breach or violation of, or default under, any of the Contracts contracts, letters of credit, purchase orders, leases, commitments, licenses or other instrumentspermits described on Schedule 3.9 of the Company Disclosure Letter, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such the breach or violation or default would, individually or in the aggregate, of which would have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to Effect on the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesCompany.
Appears in 1 contract
Sources: Merger Agreement (Joseph Littlejohn & Levy Fund Ii Lp)
Contracts and Commitments. Schedule 3.16 (a) Section 3.8 of the Sellers Disclosure Schedules sets forth all each of the following Contracts presently in effect to which Seller any of Sellers or any of their Subsidiaries is a party or bound with respect to or relating to the Product Operations, other than Contracts with Buyer or any of its Affiliates (the “Business Contracts”):
(i) any Contract pursuant to which any Seller or any of its Subsidiaries purchases products or services in excess of $500,000 in any year, excluding any sales orders or purchase orders relating thereto (other than In-Bound Licenses) and excluding any Contracts for Infrastructure Assets;
(ii) each Contract which provides for “exclusivity” or any similar requirement in favor of any Person other than Sellers or any of their Subsidiaries, or each Contract under which Sellers are restricted in any material respect in the distribution, licensing, marketing, purchasing, development or manufacturing of the Seller Products;
(iii) any settlement agreement or settlement-related agreement (including any agreement under which any threatened or asserted employment-related claim is settled) in each case that contains any on-going material obligation of Sellers or any of their Subsidiaries;
(iv) any Contract granting a right of first refusal or first negotiation with respect to the sale of any of the Purchased Assets;
(v) each Purchased Contract;
(vi) each Contract providing for payments of royalties, franchise fees or commissions to third Persons with respect to the Product Operations;
(vii) each (i) In-Bound License (including libraries provided by foundries), other than (A) Open Source Licenses, (B) Contracts for commercially available off-the-shelf Software (including SaaS agreements) available for an annual aggregate fee of $50,000 or less, and in each case that is not incorporated into any Seller Products, (C) Contracts for Infrastructure Assets, (D) commercial Contracts to the extent including ancillary licenses to use a third Person’s Marks or feedback; (E) licenses granted in Contributor Assignment Agreements; (F) license rights received by Sellers from members of a SSO through a Seller’s membership in a SSO, and (G) confidentiality agreements; and (ii) Out-Bound License, other than (1) confidentiality and non-disclosure agreements; and (2) non-exclusive licenses in Contracts with consultants, contractors and vendors to the extent granting licenses in connection with the Business, including, without limitation, counterparty’s provisions of products or services to or for any written or oral:of the Sellers; and (3) license rights granted by Sellers to members of an SSO through Seller’s membership in an SSO that is set forth in Section 3.9(k) of the Sellers Disclosure Schedules.
(aviii) commitmentany Contract granting a Lien (other than a Permitted Lien) upon any Purchased Asset; and
(ix) each Contract providing for any license or franchise granted by any Seller pursuant to which such Seller has agreed to provide any third party with access to source code or to provide for source code to be put in escrow or to refrain from granting license or franchise rights to any other Person.
(b) As of the date of this Agreement, contractSellers have made available to Buyer true and correct copies of all Business Contracts, notetogether, loanin each case, evidence with all written amendments or other changes thereto. Each Business Contract is a valid and binding obligation of indebtednessthe applicable Seller or its Subsidiaries and is in full force and effect. The applicable Seller and its Subsidiaries have performed all material obligations required to be performed by it under each Business Contract. There exists (and is not alleged to exist) no material breach or material default (or event that with or without notice or the lapse of time, purchase order or letter of credit involving any obligation both, would constitute a material breach or liability material default) on the part of Seller the applicable Seller, its Subsidiaries or its Affiliates or, to the Knowledge of Sellers, on the part of any other party thereto under any Business Contract. No event is occurring or has occurred (in the case of any event with respect to the a third party under any Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (andContract, to the best knowledge Knowledge of the StockholderSellers) that with or without notice or lapse of time would permit termination, no other party is) in breach or violation ofmodification, or default underacceleration, under any Business Contract. None of the Contracts Seller, its Subsidiaries or other instruments, obligations, evidences of indebtedness its Affiliates or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each any other party thereto enforceable against has repudiated any provision of any Business Contract. There are no circumstances that are reasonably likely to have an adverse effect on the ability of the applicable Seller or its Subsidiaries to perform their respective obligations under any Business Contract. With respect to all Business Contracts that obligate the applicable Seller or its Subsidiaries to purchase all or part of its requirements of Seller Products, such other parties, except insofar as Seller or its applicable Subsidiaries have met such enforceability may be limited purchase obligations required by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediessuch Business Contracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Seagate Technology Holdings PLC)
Contracts and Commitments. (a) Section 4.15(a) of the Company Disclosure Schedule 3.16 sets forth all Contracts presently in effect to which Seller is a party in connection with material contracts of the Business, including, without limitation, any written or oral:Company and its Subsidiaries.
(ab) commitmentThere are no purchase contracts or commitments under which the Company or any of its Subsidiaries is required to pay in excess of $50,000 which continue for a period of more than 12 months or is in excess of the normal, contractordinary, noteand usual requirements of business or at any excessive price.
(c) There are no outstanding sales contracts, loancommitments, evidence or proposals of indebtedness, purchase order the Company or letter any of credit involving any obligation its Subsidiaries that call for the payment or liability on the part of Seller with respect to the Business receipt of more than $5,000 (and not 50,000 in a fiscal quarter which continue for a period of more than $10,000 12 months or which the Company believes will result in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense loss in excess of $5,000 10,000 to the Company and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon its Subsidiaries, taken as a general description of the leased items, term, annual rent and renewal options);
(c) material governmental whole upon completion or regulatory licenses or permits required to conduct the Business as presently conducted;performance thereof.
(d) Neither the Company nor any of its Subsidiaries has any outstanding contracts with officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors, or agreements containing covenants limiting dealers that are not cancellable by it on notice of not longer than 30 days and without liability, penalty, or premium or any agreement or arrangement providing for the freedom payment of Seller to engage in any line of business bonus or compete with any person;commission based on sales or earnings.
(e) employment contractsNeither the Company nor any of its Subsidiaries is in default, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (andnor, to the best knowledge of the StockholderCompany, no is there any basis for any valid claim of default under any material contract made or obligation owed by it.
(f) Neither the Company nor any of its Subsidiaries is restricted by contract from carrying on its business anywhere in the world.
(g) Neither the Company nor any of its Subsidiaries is under any material liability or obligation with respect to the return of inventory or merchandise in the possession of wholesalers, distributors, retailers or other party iscustomers.
(h) in breach Neither the Company nor any of its Subsidiaries has any obligation for borrowed money, including guarantees of or violation ofagreements to acquire any such obligation of others.
(i) Neither the Company nor any of its Subsidiaries has any outstanding loan to any Person other than to the Company or its Subsidiaries.
(j) Neither the Company nor any of its Subsidiaries has any power of attorney outstanding or any obligations or liabilities (whether absolute, accrued, contingent, or default underotherwise), any as guarantor, surety, co-signer, endorser, co- maker or indemnitor in respect of the Contracts or other instrumentsobligation of any Person.
(k) None of the officers, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and isdirectors or, to the best knowledge of Seller and the StockholderCompany, a legalshareholders of the Company has any interest in any property, valid and binding agreementreal or personal, arrangement tangible or commitment of each other party thereto enforceable against such other partiesintangible, except insofar as such enforceability may be limited by applicable bankruptcyincluding, insolvencywithout limitation, reorganizationthe Intellectual Property Rights, moratorium or similar laws relating to or affecting creditors' rights generally and except as that is material to the availability conduct of equitable remediesthe business of the Company and its Subsidiaries taken as a whole.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization and Merger (National Information Consortium)
Contracts and Commitments. Except as set forth on Schedule 3.16 sets forth all 4.12 of the Disclosure Schedule:
(a) The Companies do not have any Contracts presently which either individually or in effect to which Seller is a party conjunction with other Contracts with the same party, and in connection with the Businesssame matter, relate to commitments in excess of $25,000 per annum or are otherwise material to their business, operations or prospects;
(b) To the Knowledge of the Companies, no Contract or bid is anticipated to result in any loss to any Company upon completion or performance thereof, and no Contract or bid is at prices materially above or below the usual prices of the Companies for the same or similar products or services;
(c) The Companies do not have any outstanding Contracts or arrangements (i) providing for the payment of any salary, bonus or commission based on sales or earnings, (ii) with an employee consultant or other service provider of any Company, including contracts providing for employment, consulting, deferred compensation or benefit plans or agreements to an employee, that has aggregate annual payments in excess of $100,000 and is not terminable on sixty (60) days notice or less or (iii) with any Related Person;
(d) The Companies do not have any Contracts with an independent contractor or consultant that has aggregate annual payments in excess of $100,000 and is not terminable on sixty (60) days notice or less without penalty, liability or premium of any type, including, without limitation, any written severance or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any persontermination pay;
(e) employment contracts, including without limitation, contracts The Companies do not have any Contracts relating to employ executive officers and Company Rights (other contracts with officers or directors of Sellerthan Company License Rights for off-the-shelf software);
(f) contracts The Companies do not have any Contracts pursuant to which they have guaranteed any obligations of other persons or made any agreements to acquire or guarantee any obligations of or indemnify or hold harmless other Persons other than in connection with customers the acquisition of the Companies by the ESOP Trust, Contracts not on the Operating Companies’ standard forms or Permanent Placement Agreements with clients, the Guaranty of Jamestown in favor of Medical Protective, and suppliers such other Indebtedness as listed on Schedule 4.12(k) of Seller the Disclosure Schedule;
(g) The Companies do not have any Contract which provides for contingent payments or earn-outs other than this Agreement and the Performance Share Plans of the Companies and Employment Agreements with respect to the Business with a gross value to Seller in excess of $2,000 per year ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
(Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether h) The Companies do not have any (i) such customer employee non-competition agreements, or supplier has renewed such contract for the period following the period covered thereby and (ii) agreements or policies that contain any severance or termination pay liabilities or obligations other than Employment Agreements with ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the Performance Share Plans;
(i) The Companies do not have any collective bargaining or union Contracts;
(j) The Companies are not restricted by any Contract from carrying on their businesses as currently conducted anywhere in the world;
(k) The Companies do not have any obligations for Indebtedness other than as set forth on Schedule 4.12(k) of the Disclosure Schedule;
(l) The Companies do not have any outstanding loans to any Person (other than travel and entertainment advances to Employees in the Ordinary Course of Business);
(m) The Operating Companies and Jamestown do not have a power of attorney outstanding or any obligations or liabilities as guarantor, surety, co-▇▇▇▇▇▇, endorser, co-maker, indemnitor or otherwise in respect of the obligation of any other Person, except as disclosed in Sections 4.8(c) and 4.12(f);
(n) None of the Companies are a party to any partnership or joint venture agreement whether or not a separate legal entity is created thereby;
(o) None of the Companies are a party to any Contract (i) relating to the lease or similar arrangement of any machinery, equipment, motor vehicles, furniture, fixture or similar property except as identified on Schedule 4.12(a) of the Disclosure Schedule, (ii) to which any federal, state or local Governmental Entity or authority is a party, (iii) pursuant to which any Company is or may be obligated to make payments, contingent or otherwise, on account of or arising out of prior acquisitions or sales of businesses, assets or stock of other Persons, (iv) relating to the sale or other disposition of any of its assets, Property or other rights except pursuant to the Performance Share Plans of the Companies, or (v) that would obligate any Company to repair, replace, accept the return of or make any refund in respect of any product or service sold or performed by any Company other than pursuant to any Permanent Placement Contract;
(p) None of Companies are in breach or default, and to the Knowledge of the Operating Companies, there is no basis for any valid claim or breach or default, under any material Contract to which any Company is a party or by which any Company or any of it respective assets are bound and, to the Knowledge of the Companies, there exists no event or condition which (whether with or without notice, lapse of time, or both) would constitute a default thereunder, give rise to a right to accelerate, modify or terminate any provision thereof or give rise to any Encumbrance on its Property or a right to any additional or guaranteed payments; and to the Knowledge of the Companies, no other party to any such contract permits Contract is in breach or default thereof other than for delinquent or past due amounts for which adequate reserves have been established in the Financial Statements in accordance with GAAP;
(q) None of the Companies’ agreements to provide goods and services are subject to any agreement that restricts the respective Company’s ability to change the price charged for such customer goods or supplier to terminate such contract on 60 days' notice or less)services other than restrictions under Federal Supply Schedule Contracts regarding “economic price adjustments”; and
(gr) contracts Each contract and commitments not otherwise described agreement referred to in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge 4.12 of the Stockholder, no other party is) Disclosure Schedule is valid and in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is full force and effect and constitutes a legal, valid and binding agreementobligation of the applicable Company and, arrangement or commitment to the Knowledge of Seller the Companies, the other parties thereto, enforceable against Seller in accordance with its respective terms, and iswill not cease to be valid and in full force and effect after the Closing Date, except to the best knowledge extent any such Contract requires Consent that will not be procured pursuant to Section 2.5 hereof; accurate and complete copies thereof, together with all amendments thereto, have been heretofore delivered or made available to Buyer of Seller and all Contracts not on the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesOperating Companies’ standard forms.
Appears in 1 contract
Contracts and Commitments. (a) Except for the Union Contracts, the Personal Property Leases required to be disclosed pursuant to Section 5.12 hereof, the Employment Agreements required to be disclosed pursuant to Section 5.17 hereof, the Plans required to be disclosed pursuant to Section 5.18 hereof and the insurance policies required to be disclosed pursuant to Section 5.21 hereof, Schedule 3.16 sets forth all 5.22 attached hereto contains a complete and accurate list of each of the Contracts presently in effect to which Seller the Company or ADSI is a party to and which: (i) requires the Company or ADSI to make payments to any Person in connection excess of U.S. $25,000.00 per year; or (ii) provides that the Company or ADSI is entitled to receive payments in excess of U.S. $25,000.00 per year; or (iii) limits the freedom of the Company or ADSI to conduct the Business in any geographic area; or (iv) contains any “change in control” provision which would be breached or otherwise activated by the consummation of the transactions contemplated by this Agreement; or (v) contains the terms of any guaranty of the payment or performance of any Liabilities; or (vi) has a term in excess of one year and is not cancelable upon thirty (30) or fewer days’ notice without any liability, penalty or premium (other than a nominal cancellation fee or charge) (all such Contracts being collectively with the BusinessUnion Contracts, includingPersonal Property Leases, without limitation, any written or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on Real Property Leases and Employment Agreements referred to as the part of Seller with respect “Material Contracts”). Prior to the Business date hereof Sellers have delivered or otherwise made available to Buyer, true, complete and correct copies of more than $5,000 (the written Material Contracts including all amendments thereof and not more than $10,000 in the aggregate) modifications thereto and not cancelable (without liability) on not more than 30 days' notice;complete descriptions of all oral Material Contracts.
(b) lease Except as set forth in Schedule 5.22(b) attached hereto, each of personal property with respect the Material Contracts is valid, binding and in full force and effect and enforceable against the Company or ADSI, as the case may be, and, to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description knowledge of the leased itemsShareholders, termagainst the other parties thereto in accordance with its terms. Assuming any necessary consents are obtained, annual rent the enforceability of the Material Contracts will not be affected in any manner solely by the execution and renewal options);delivery of this Agreement or the effectuation of the transactions contemplated hereby. Except as set forth in Schedule 5.22(b) attached hereto, no filing with, consent, approval, authorization or other action is required from or of any party to any of the Material Contracts in order for such Material Contracts to be valid, binding and enforceable by Buyer after the Closing Date.
(c) material governmental Neither the Company nor ADSI is in default under any of the Material Contracts, there is no basis for any valid claim that the Company or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage ADSI is in default under any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (Material Contracts and, to the best knowledge of the StockholderShareholders, there is no basis for any claim that any other party is) in breach or violation of, or default under, parties to any of the Material Contracts is in default with respect to its obligations under such Material Contracts. Other than pursuant to warranty terms or as may be required by Law, neither the Company nor ADSI Seller is under any liability or obligation to return to any supplier or other instrumentsperson or to receive consignments back from any customer of a material quantity of any Inventory or products used, obligations, evidences of indebtedness manufactured or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or otherwise produced by any Seller in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence conduct of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesBusiness.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect to which Seller is a party in connection with the Business, including, without limitation, any written or oral:
(a) commitmentTo the Company’s knowledge, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregateSchedule 5.9(a) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description attached hereto lists all of the leased items, term, annual rent following Contracts of the Company and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers GFA Brands which are currently in effect and for each such contract includes a notation as to whether of the date hereof (and, as identified on Schedule 5.9(a), the “Material Contracts”):
(i) such customer or supplier has renewed such contract for the period following the period covered thereby and Contracts (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including other than purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not orders entered into in the ordinary course of business; it being understood that ) which involve commitments to make capital expenditures or which provide for the purchase of goods or services by the Company or GFA Brands from any one Person under which the undelivered balance of such products or services has a purchase price in excess of Twenty-Five Thousand Dollars ($25,000);
(ii) Contracts (other than purchase orders entered into in the ordinary course of business) which provide for the sale of products or services by the Company or GFA Brands and under which the undelivered balance of such products or services has a sale price in excess of Twenty-Five Thousand Dollars ($25,000);
(iii) Any hedge Contracts or Contracts involving the purchase or sale of any commodities or any futures related thereto;
(iv) Contracts relating to the borrowing of money by the Company or GFA Brands, to the granting by the Company or GFA Brands of a Lien on any of its assets, or any guaranty by the Company or GFA Brands of any obligation or liability in any case involving a liability in excess of Twenty-Five Thousand Dollars ($25,000);
(v) Contracts with dealers, distributors, brokers or sales representatives which are likely to involve payments in excess of Twenty-Five Thousand Dollars ($25,000);
(vi) Contracts relating to advertising or media commitments for its products or services which are likely to involve payments in excess of Twenty-Five Thousand Dollars ($25,000);
(vii) Contracts pursuant to which the Company or GFA Brands is a lessor or a lessee of any property, personal or real, or holds or operates any tangible personal property owned by another Person, except for any leases of personal property under which the aggregate annual rent or lease payments do not exceed Twenty-Five Thousand Dollars ($25,000);
(viii) Contracts relating to the manufacture or packaging of any of the Company’s or GFA Brands’ products which are likely to involve payments in excess of Twenty-Five Thousand Dollars ($25,000);
(ix) Contracts for the use, license or sublicense of any Proprietary Rights owned or licensed by the Company or GFA Brands or otherwise used in the Business (other than any license of mass-marketed or otherwise generally available software);
(x) any power of attorney (whether revocable or irrevocable) given to any Person by the Company or GFA Brands;
(xi) Contracts by the Company or GFA Brands not to compete in any business or in any geographical area or with respect to each category listed above which the Company or GFA Brands is the beneficiary of any non-compete provision;
(xii) Contracts restricting the right of the Company or GFA Brands to use or disclose any information in their possession or with respect to which the Company or GFA Brands is the beneficiary of any confidentiality, nondisclosure or non-use provision;
(xiii) any partnership, joint venture or other similar arrangements;
(xiv) any employment agreements, severance agreements, bonus agreements and non-competition agreements with employees of the Company or GFA Brands including, without limitation, all contracts involving Bonus Payments; and
(xv) any Contract with any officer, director, shareholder or any of their respective Affiliates except for employment agreements with its officers (which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not identified as an Affiliate contract on Schedule 5.9(a)).
(and, b) Except as disclosed on the attached Schedule 5.9(b): (i) neither the Company nor GFA Brands has materially breached or cancelled any Contract; (ii) to the best knowledge Company’s Knowledge, none of the StockholderCompany’s or GFA Brands’ Contracts have been breached in any respect or canceled by the other party which has not been duly cured or reinstated; (iii) to the Company’s Knowledge, neither the Company nor GFA Brands is in receipt of any written claim of default under any Contract; (iv) to the Company’s Knowledge, no other party is) event has occurred which with the passage of time or the giving of notice or both would result in a material breach or violation ofdefault under any Contract or create in any Person the right to accelerate, suspend, terminate, modify, cancel or default underexercise any other material right under any Contract; (v) no Person has given notice to the Company or GFA Brands of repudiation of any provision of any Contract; and (vi) neither the Company nor GFA Brands has received any notice of any, and to the Company’s Knowledge there is no, impending change of any relationship with any customer or supplier of the Contracts Company or GFA Brands or other instrumentsPerson with whom the Company or GFA Brands has a material business relationship. To the Company’s Knowledge, obligationseach Contract is valid, evidences of indebtedness or commitments described binding and in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid full force and binding agreement, arrangement or commitment of Seller effect and enforceable against Seller in accordance with its respective terms. Except as disclosed on Schedule 5.9(a), all of the Material Contracts are either terminable at will or on not more than 90 days advance notice by the Company or GFA Brands and isin either case without penalty.
(c) Except as disclosed on Schedule 5.9(a), the Company has made available to Parent true, correct and complete copies of all of the best knowledge Material Contracts together with all amendments or waivers thereof.
(d) Each of Seller the Company’s and GFA Brands’ Contracts have been entered into without the Stockholdercommission of any act by or on behalf of the Company or GFA Brands, a legalalone or in concert with any other Person, valid and binding agreementor any consideration having been paid or promised, arrangement that, in either case, is or commitment would be in violation of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesany Law.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets Except as set forth all Contracts presently in effect to which Seller Section 4.25 of the NeoStem Disclosure Statement, as described in a NeoStem SEC Report or as set forth as an exhibit in a NeoStem SEC Report, neither NeoStem nor any of its Subsidiaries is a party to any existing contract, obligation or commitment of any type in connection with any of the Business, including, without limitation, any written or oralfollowing categories:
(a) commitment4.25.1 contracts for the purchase by NeoStem or any of its Subsidiaries of medicines, contractmaterials, note, loan, evidence of indebtedness, purchase order supplies or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and equipment which are not cancelable (without liability) on not more than 30 upon 90 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 or less notice and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether which either (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments have not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not been entered into in the ordinary course of business; it being understood that business and consistent with past practice or (ii) provide for purchase prices substantially greater than those presently prevailing for such materials, supplies or equipment, or (iii) contracts obligating NeoStem or its Subsidiaries to make capital expenditures in excess of $50,000;
4.25.2 contracts under which NeoStem or any of its Subsidiaries has, except by way of endorsement of negotiable instruments for collection in the ordinary course of business and consistent with past practice, become absolutely or contingently or otherwise liable for (i) the performance of any other person, firm or corporation under a contract, or (ii) the whole or any part of the indebtedness or liabilities of any other person, firm or corporation;
4.25.3 powers of attorney outstanding from NeoStem or any of its Subsidiaries other than as issued in the ordinary course of business and consistent with past practice with respect to each category listed above customs, insurance, patent, trademark or tax matters, or to agents for service of process;
4.25.4 contracts under which any amount payable by NeoStem or any of its Subsidiaries is dependent upon, or calculated in accordance with, the revenues or earnings (or any component thereof of NeoStem or any of its Subsidiaries;
4.25.5 contracts with any director, officer, employee or affiliate of NeoStem or any of its Subsidiaries other than in such person's capacity as a dollar amount threshold has been establisheddirector, officer or employee of NeoStem or any of its Subsidiaries;
4.25.6 contracts which limit or restrict where NeoStem or any of its Subsidiaries may conduct its business or the type or line of business in which NeoStem or any of its Subsidiaries may engage;
4.25.7 contracts with any party for the loan of money or availability of credit to or from NeoStem or any of its Subsidiaries (except credit extended by NeoStem or any of its Subsidiaries to its customers in the ordinary course of business and consistent with past practice);
4.25.8 any material hedging, option, derivative or other similar transaction; or
4.25.9 any contract with any Governmental Authority or, to NeoStem's knowledge, any item within such category Government Authority contractor, with a value less than regard to any product or service sold or provided by NeoStem. True and complete copies of all contracts, obligations and commitments listed in Section 4.25 of the dollar amount specified shall be deemed immaterialNeoStem Disclosure Statement have been delivered or made available to CBH. Seller Except as set forth in Section 4.25 of the NeoStem Disclosure Statement, none of NeoStem or its Subsidiaries or, to the knowledge of NeoStem, any other party is not in breach of or default under any of the contracts, obligations and commitments listed in Section 4.25 of the NeoStem Disclosure Statement or under any other NeoStem Contracts (and, to the best knowledge of the StockholderNeoStem, no other party is) in breach facts or violation of, or default under, circumstances exist which could reasonably support the assertion of any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default woulddefault) except for breaches and defaults which would not, individually singly or in the aggregateaggregate with all other such breaches, have a Seller NeoStem Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedies.
Appears in 1 contract
Sources: Merger Agreement (China Biopharmaceuticals Holdings Inc)
Contracts and Commitments. (a) Schedule 3.16 2.11 sets forth a complete and accurate list of all Contracts presently ------------- contracts which are known to the Seller after reasonable investigation and which were entered into by Seller and related to the Practice and still in effect to which Seller is a party in connection with as of the Businessdate hereof (the "Contracts"), including, without limitation, any written or oralof the following categories:
(ai) commitment, contract, note, loan, evidence Managed care contracts and other contracts with third-party payors;
(ii) Employment or similar contracts and severance agreements;
(iii) Contracts (other than Leases set forth on Schedule 2.10) ------------- related to the Assets of indebtedness, purchase order or letter of credit involving any obligation or the Practice which are not cancelable without liability on the part of Seller with respect to the Business of more than $5,000 thirty (and not more than $10,000 in the aggregate30) and not cancelable calendar days (without liabilityor less) on not more than 30 days' notice;
(biv) lease of personal property Options with respect to any property, real or personal related to the Business Practice, whether Seller is the grantor or grantee thereunder;
(v) Contracts involving any annual expense expenditures or liabilities, actual or potential, in excess of one thousand dollars ($5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect 1,000) or otherwise material to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)Practice or the Assets;
(cvi) material governmental Promissory notes, loans, agreements, indentures, evidences of indebtedness, letters of credit, guarantees, or regulatory licenses other instruments relating to an obligation to pay money, individually in excess of or permits required in the aggregate in excess of one thousand dollars ($1,000) and related to conduct the Business as presently conductedPractice, whether Seller shall be the borrower, lender or guarantor thereunder or whereby any Assets are pledged;
(dvii) contracts or agreements Contracts containing covenants limiting the freedom of Seller or employee of Seller, to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(gviii) contracts Any Contract with the United States, state or local government or any agency or department thereof related to the Practice. Seller has made available to PQC true, correct and commitments not otherwise described in this Section 3.16 or complete copies within Seller's possession of, and all records related to, all of the Contracts listed on Schedule 3.16 2.11, including all amendments and supplements thereto. -------------
(including purchase ordersb) Absence of Breaches or Defaults. To the Seller's knowledge, franchise agreements all of ------------------------------- theContracts are valid and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterialfull force and effect. Seller is not (andhas duly performed all of its obligations under the Contracts, to the best knowledge of the Stockholder, and no other party is) in breach or violation of, or default underor breach, under any of the Contracts by Seller or any other instrumentsparty has occurred except for any violations, obligationsdefaults, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, breaches that would not have a Seller Material Adverse Effect. Each Contract or Effect and neither Seller nor any other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and isparty, to the best of Seller's knowledge of Seller and the Stockholderafter due inquiry, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedieshas repudiated any provisions thereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Physicians Quality Care Inc)
Contracts and Commitments. (a) Schedule 3.16 sets forth 3.19 contains a complete and accurate list of all Contracts presently in effect to which Seller is a party in connection with the Business, (including, without limitation, intercompany contracts) of the following categories to which the Seller or its Subsidiaries is a party or by which any written or oralof them is bound, as of the date of this Agreement:
(ai) commitmentall employment, contractpersonal services, noteconsulting, loannoncompetition, evidence of indebtednessseverance, purchase order golden parachute or letter of credit involving any obligation employee, officer or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticedirector indemnification contracts;
(bii) lease of personal property with respect to the Business all Contracts, Leases, or Permits (other than Environmental Permits) involving any annual expense yearly rental payments or receipts in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)50,000;
(ciii) material governmental promissory notes, loans, agreements, indentures, evidences of indebtedness or regulatory licenses other instruments providing for the lending of money, whether as borrower, lender or permits required to conduct the Business as presently conductedguarantor, in excess of $50,000 and all related security agreements or similar agreements associated therewith;
(div) contracts or agreements Contracts containing covenants limiting the freedom of the Seller and its Subsidiaries to engage in any line of business or compete with any personperson or operate at any location, including, without limitation, any preferential rights granted to third parties;
(ev) employment contractsany Contract pending for the acquisition or disposition, including without limitation, contracts to employ executive officers and other contracts with officers directly or directors indirectly (by merger or otherwise) of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business assets with a gross value to Seller in excess of $2,000 per year 50,000 or capital stock of the Seller and its Subsidiaries;
(Schedule 3.16 sets forth vi) Contracts between the Seller or its Subsidiaries, on one hand, and the Seller or any affiliate of the Seller on the other hand;
(vii) all such contracts with customers Contracts pertaining to the ownership, operation, or maintenance of any and suppliers currently all facilities of the Seller and its Subsidiaries having a term greater than 90 days or a value in effect excess of $50,000;
(viii) any other agreement of the Seller and for each such contract includes a notation as its Subsidiaries which requires or required payments to whether be made or received in excess of $50,000 within any twelve (i12) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less)month period; and
(gix) contracts and commitments not otherwise described all Contracts or any other agreement currently in this Section 3.16 negotiation or proposed by the Seller or its Subsidiaries which, if entered into, would be required to be listed on Schedule 3.16 3.19.
(including purchase ordersb) True copies of the written Contracts, franchise agreements and undertakings or commitments to any Governmental Entity) relating accurate written summaries of the oral Contracts, identified in Schedule 3.19 have been made available to the Business or otherwise affecting Buyers. Except as set forth in Schedule 3.19, neither the Business under contracts not in Seller nor any of the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller Subsidiaries is not (and, to the best knowledge of the StockholderSeller, no other party is) is in default under, or in breach or violation ofof (and no event has occurred which, with notice or the lapse of time or both, would constitute a default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such a breach or violation of) any term, condition or default wouldprovision of any Contract identified on Schedule 3.19 except for defaults, breaches, violations or events which, individually or in the aggregate, would not reasonably be expected to have a Seller Material Adverse Effect. Each Contract Other than Contracts which have terminated or expired in accordance with their terms, each of the Contracts identified on Schedule 3.19 constitutes valid, binding and enforceable obligations of the Seller or the Subsidiaries to the extent they are parties thereto and, to the knowledge of the Seller, enforceable obligations of any other instrumentparty thereto, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, terms (subject to the best knowledge effects of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting creditors' rights generally generally, general equitable principles (whether considered on a proceeding in equity or at law) and except as an implied covenant of good faith and fair dealing) and is in full force and effect. No event has occurred which either entitles, or would, upon notice or lapse of time or both, entitle the holder of any indebtedness for borrowed money affecting the Seller and its Subsidiaries to accelerate, or which does accelerate, the availability maturity of equitable remediesany indebtedness affecting the Seller and its Subsidiaries.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 3.16 sets forth all Contracts presently 2.23 attached hereto contains a true, complete and ------------- correct list and description of the following contracts and agreements of the Sellers, in effect relation to which Seller is a party in connection with the Businesspersonal emergency response business, including, without limitation, any whether written or oral:
(ai) commitmentall contracts, contractagreements, note, loan, evidence of indebtednesscommitments, purchase order orders or letter other understandings or arrangements to which the Sellers are a party or by which the Sellers or any of credit involving any obligation their property is bound which (A) involve payments or liability on receipts by the part of Seller with respect to the Business Sellers of more than $5,000 (and not more than $10,000 1,000 in the aggregatecase of any single (or series of related) contracts, agreements, commitments, understandings or arrangements under which full performance (including payment) has not been rendered by all parties thereto or (B) which may materially adversely affect the condition (financial or otherwise) or the properties, assets, business or prospects of the Sellers;
(ii) all employment and not cancelable consulting agreements, executive compensation plans, bonus plans, deferred compensation agreements, pension plans, retirement plan, employee stock option or stock purchase plans and group life, health and accident insurance and other employee benefit plans, agreements, arrangements or commitments to which the Sellers are a party or by which the Sellers or any of their property is bound;
(without liabilityiii) on not more than 30 days' noticeall agency, distributor, sales representative and similar agreements to which the Sellers are a party;
(iv) all contracts, agreements or other understandings or arrangements between the Sellers and any officers, shareholder, manager, member or affiliate of the Sellers; and
(v) any other material agreement or contract entered into by the Sellers.
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 Except as set forth on Schedule 2.23 attached hereto: -------------
(i) each contract is a valid and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description binding agreement of the leased itemsSellers, termenforceable against the Sellers in accordance with its terms, annual rent and renewal options)the Sellers do not have any knowledge that any contract is not a valid and binding agreement of the other parties thereto;
(cii) the Sellers have fulfilled all material governmental or regulatory licenses or permits obligations required pursuant to conduct the Business as presently conductedcontracts to have been performed by the Sellers on their part prior to the date hereof, and the Sellers have no reason to believe that they will not be able to fulfill, when due, all of their obligations under the contracts which remain to be performed after the date hereof;
(diii) contracts the Sellers are not in breach of or agreements containing covenants limiting default under any contract, and no event has occurred which with the freedom passage of Seller to engage in any line time or giving of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less)both would constitute such a default, result in a loss of rights or result in the creation of any lien, charge or encumbrance, thereunder or pursuant thereto; and
(giv) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the StockholderSellers, there is no existing breach or default by any other party is) to any contract, and no event has occurred which with the passage of time or giving of notice or both would constitute a default by such other party, result in breach a loss of rights or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or result in the aggregatecreation of any lien, charge or encumbrance thereunder or pursuant thereto;
(v) the Sellers are not restricted by any contract from carrying on their business in the states of New York, Florida or Pennsylvania; and
(c) True, correct and complete copies of all contracts listed on Schedules 2.21 and 2.23
(a) have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, previously been delivered by the Sellers to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedies-------------------------- Buyer.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets Except as set forth all Contracts presently in effect to which on SCHEDULE 3.1(H) hereto, neither the Seller nor Cephalon is a party in connection with the Business, including, without limitation, to any written or oral:
(ai) commitmentagreement, contract or commitment for the employment of any person, including any consultant, employed at the Facilities in connection with the conduct of the Seller's business;
(ii) agreement, contract, notecommitment or arrangement with any labor union or other representative of employees relating to the Facilities or the Purchased Assets;
(iii) loan agreements and other debt instruments that in any manner encumber any of the Purchased Assets;
(iv) agreement, loancontract or commitment relating to the 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), evidence and continuing over a period of indebtedness, purchase order more than six months from the date hereof or letter of credit involving any obligation or liability on the part of Seller exceeding with respect to the Business of more than $5,000 (and not more than Facilities or the Purchased Assets, $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticevalue;
(bv) conditional sale agreement or lease of personal property with respect under which the Seller is either purchaser, lessor or lessee relating to the Business involving Purchased Assets or any annual expense property at which Purchased Assets are located;
(vi) commitment or agreement for any capital expenditure or leasehold improvement in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect 25,000 relating to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)Facilities or the Purchased Assets;
(cvii) material governmental agreement, contract or regulatory licenses commitment relating to the Facilities or permits required the Purchased Assets limiting or restraining the Seller or Cephalon or any successor thereto, to conduct the Business as presently conducted;
(d) contracts best of the Seller's and Cephalon's knowledge, from using or agreements containing covenants limiting operating the freedom of Seller to engage Purchased Assets in any line of business or compete with any person;
(e) employment contractslegal manner, including without limitationnor, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value Seller's or Cephalon's knowledge, is any employee of the Seller engaged in the use of the Purchased Assets subject to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all any such contracts with customers and suppliers currently in effect and for each such agreement, contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less)commitment; and
(gviii) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orderslicense, franchise agreements and undertakings or commitments to any Governmental Entity) distributorship agreement relating to the Business Facilities or otherwise the Purchased Assets. Except as may be disclosed on SCHEDULE 3.1(H), each of the agreements, contracts, commitments, leases, plans and other 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 limited by bankruptcy laws and other similar laws affecting the Business under contracts not rights of creditors generally and principles of equity; the Seller and Cephalon are in compliance with the ordinary course of businessprovisions thereof; it being understood that with respect to each category listed above for which a dollar amount threshold has been establishedneither the Seller nor Cephalon is, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, and to the best Seller's or Cephalon's knowledge of the Stockholder, no other party thereto is) , in breach default in the performance, observance or violation offulfillment of any material obligation, covenant or condition contained therein, and no event has occurred which with or without the giving of notice or lapse of time, or both, would constitute a default underthereunder. Except as set forth on SCHEDULE 3.1(H), any of the Contracts no written or other instrumentsoral agreement, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness contract or commitment described in paragraphs (a)-(g) above is a legalSCHEDULE 3.1(H), valid and binding agreement, arrangement or commitment requires the consent of Seller enforceable against Seller any party to its assignment in accordance connection with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediestransactions contemplated hereby.
Appears in 1 contract
Sources: Assets Purchase Agreement (North American Vaccine Inc)
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect to which Seller is a party in connection with the Business, including, without limitation, any written or oral:
(a) commitmentNone of the Purchased Assets or Assumed Liabilities contain any of the following: (i) collective bargaining agreement, contractor any agreement that contains any severance pay liabilities or obligations; (ii) employment, noteconsulting or similar agreements, loan, evidence contracts or commitments that are not terminable without penalty or cost by Seller on notice of indebtedness, purchase order thirty (30) calendar days or letter of credit involving any less or which contain an obligation or liability on the part of Seller with respect to pay and/or accrue more than $50,000 per year; (iii) notes or other evidences of Indebtedness for borrowed money or the Business deferred purchase price of property or services, which involve a liability of more than $5,000 50,000; (and not more than $10,000 in the aggregateiv) and not cancelable agreement of guaranty or indemnification; (without liabilityv) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased itemsagreement, term, annual rent and renewal options);
(c) material governmental contract or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants commitment limiting the freedom of Seller to engage in any line of business or compete with any person;
Person; (evi) employment contractsagreement, including without limitation, contracts to employ executive officers and other contracts contract or commitment (written or oral) with officers or directors of Seller;
(f) contracts with customers and suppliers a supplier of Seller with respect to the Business with a gross value that provided more than $50,000 in goods or services to Seller in excess of $2,000 per fiscal year 2001 or is reasonably expected to provide such amount or more in fiscal year 2002; (Schedule 3.16 sets forth all such contracts vii) agreement, contract or commitment (written or oral) with customers and suppliers currently or other Persons which involves $50,000 or more and, by its terms, is not cancelable without penalty or cost within sixty (60) calendar days or (viii) any of the foregoing, whether above or below the thresholds referred to therein, which involves $125,000 or more in effect and for each such contract includes a notation as to whether the aggregate.
(b) (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, nor has Seller received in writing any claim or default underassertion that it has breached, any of the terms or conditions of any of the Purchased Contracts or other instrumentsand there are no obligations owed by Seller under the Purchased Contracts; (ii) each Purchased Contract is in full force and effect in the form delivered to Buyer, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such there is no material breach or violation default by Seller or, to Seller’s Knowledge, any party thereto, and Seller has not received any notice (in writing or default wouldotherwise) that any party thereto wishes to cancel or not renew such Purchased Contract; (iii) to Seller’s Knowledge, individually there are no facts or in the aggregateconditions that exist, have occurred, or are anticipated which, through the passage of time or the giving of notice, or both, would constitute a Seller Material Adverse Effect. Each material default under any Purchased Contract or other instrument, obligation, evidence would cause the acceleration of indebtedness any obligation of any party thereto or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment the creation of Seller enforceable against Seller in accordance with its respective termsan Encumbrance, and is(iv) neither the execution, delivery and performance of this Agreement or the documents or instruments executed in connection herewith, nor consummation of the transactions contemplated hereby or thereby, will cause the forfeiture or termination of, or give rise to the best knowledge a right of Seller and the Stockholderforfeiture or termination of, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesany Purchased Contract.
Appears in 1 contract
Contracts and Commitments. (a) Section 2.13 of the Disclosure Schedule 3.16 sets forth all Contracts presently in effect lists the following contracts and other agreements to which Seller each of the Acquired Companies is a party in connection with the Business(however, including, without limitation, any written or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to contracts with customers of the Business Acquired Companies, only such contracts pursuant to which revenue has been received within the last three years have been listed):
(i) customer agreements, including agreements relating to the license of more software, and any other agreements involving the license of Software or Intellectual Property by either of the Acquired Companies to a third party so long as such license has generated payments of greater than $5,000 (and not more than $10,000 50,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticelast three years or where the total commitment for payment in the future exceeds $50,000;
(bii) lease all reseller or redistribution agreements entered into for the resale of personal property with respect computer hardware or software; and each lease, license or agreement under which either of the Acquired Companies holds or operates any property, real or personal, or any Software or Intellectual Property Rights owned by any other party, that is material to the Business involving operation of the Business;
(iii) agreements under which either of the Acquired Companies has created, incurred, assumed or guaranteed any annual expense indebtedness for borrowed money, or any capitalized lease obligation, in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon 50,000 or under which it has imposed a general description Lien on any of the leased itemsits tangible assets, term, annual rent and renewal options)or any leases for real property;
(civ) material governmental any written agreement for the employment of any individual on a full time, part time, consulting or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller basis providing annual compensation in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer 50,000 or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); andproviding severance benefits;
(gv) contracts and commitments not otherwise described in this Section 3.16 any agreement under which either of the Acquired Companies has advanced or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments loaned any amount to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in of its directors, officers and employees outside the ordinary course of business; it being understood that with respect to each category listed above and
(vi) agreements for which a dollar amount threshold has been established, the sale of any item within such category with a value less than capital or other assets in excess of $200,000.
(b) To the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge Knowledge of the StockholderAcquired Companies, no the Acquired Companies and the other party is) or parties thereto have performed all material obligations required to be performed by it in breach or violation of, or default under, any connection with the contracts disclosed in Section 2.13 of the Contracts or other instrumentsDisclosure Schedule, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, except where the failure to perform such breach or violation or default would, individually or in the aggregate, obligations would not have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence and the Acquired Companies are not in receipt of indebtedness any written claim of material default under any contract or commitment described disclosed in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment Section 2.13 of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesDisclosure Schedule.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 3.16 3.13(a) sets forth all Contracts presently in effect a list, as of the date hereof, of any Contract of the following character to which Seller (x) the Purchased Assets are bound, (y) the Company is a party or is otherwise bound, or (z) the Company or any Affiliate of the Company uses or holds for use primarily in connection with the conduct of the Business:
(i) Contract or group of related Contracts with the same party (other than standard purchase orders) for the purchase by the Company of products or services which provided for annual payments in excess of $200,000 during the trailing twelve-month period ending on the Latest Balance Sheet Date;
(ii) Contract or group of related Contracts with a customer (other than standard purchase orders or pricing agreements) that provided for annual revenues (based on the trailing twelve-month period ending on the Latest Balance Sheet Date) to the Company in excess of $150,000;
(iii) material IP License;
(iv) bonus, pension, profit sharing, retirement or other form of deferred compensation plan used primarily in the conduct of the Business, other than as described in Section 3.16 or the Disclosure Schedules relating thereto;
(v) Contract for the sale of any of the Purchased Assets or for the grant to any Person of any option, right of first refusal or preferential or similar right to purchase any of the Purchased Assets;
(vi) broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts which provided for annual payments in excess of $150,000 during the trailing twelve-month period ending on the Latest Balance Sheet Date;
(vii) employment agreements and Contracts with independent contractors or consultants (or similar arrangements) and which are not cancellable without material penalty or without more than ninety (90) days’ notice;
(viii) except for Contracts relating to trade receivables, all Contracts relating to Indebtedness (including, without limitation, any written or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeguarantees);
(bix) lease Contract with the Company involving personal services for the employment of personal property with respect to the Business involving any annual expense officer, individual employee or other person on a full-time basis providing for (A) base salary in excess of $5,000 and not cancelable without liability within 30 days 150,000 per year; (Schedule 3.16 indicates with respect to each such lease listed thereon B) the payment of any cash or other compensation as a general description result of the leased itemsexecution of this Agreement and/or the consummation of the transactions contemplated hereby; and/or (C) a restriction on the Company to terminate the employment of any employee for any lawful reason or for no reason without severance or other payment obligations;
(x) guaranty of any obligation for borrowed money or other material guaranty involving more than $100,000;
(xi) joint venture, termpartnership, annual rent limited liability company, stockholder, strategic alliance or other similar Contracts (including any Contract providing for joint research or development of Intellectual Property Rights, marketing or distribution, or the sharing of profits and renewal optionsexpenses);
(cxii) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
Contract that (dA) contracts or agreements containing covenants limiting materially restricts (1) the freedom of Seller the Company to engage compete in any line of business or compete with any personPerson or in any area (including, for the avoidance of doubt, both in respect of geography or market area or market segments), (2) the ability of the Company to sell (or purchase) goods or services to (or from) any Person or (3) the ability of the Company to solicit any Person for employment or engagement as an independent contractor, or (B) contains a provision requiring that the pricing provided under such Contract is equal to or less than the pricing provided to any other third party.
(xiii) Contract that (A) requires the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or vendor, or (B) that is a warranty Contract or arrangement with respect to services rendered or products sold, other than warranties entered into in the Ordinary Course of Business;
(exiv) employment contractsContract relating to any completed material business acquisition by the Company during the three year period immediately preceding the date hereof (such time period, including without limitationthe “Look-Back Period” and the beginning date of such Look-Back Period, contracts the “Look-Back Date”); or
(xv) Any Contract (other than off-the-shelf, shrink wrap license agreements that are immaterial to employ executive officers the Business, the Purchased Assets and other contracts the Assumed Liabilities) with officers Google, Inc., Yahoo!, Inc., Microsoft, Inc., or directors any of Sellertheir respective Affiliates;
(fxvi) contracts Contract with customers any Government Authority; and
(xvii) Any other Contract that is material to the Business, the Purchased Assets or the Assumed Liabilities.
(b) The Company has provided to the Purchaser a true and suppliers correct copy of Seller all Contracts listed on Schedule 3.13(a) (the “Material Contracts”), together with all modifications, amendments and supplements thereto and waivers thereunder and with respect to any oral Contract, a written summary thereof setting forth the Business with a gross value to Seller in excess terms and conditions of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation oral Contract.
(c) Except as set forth on Schedule 3.13(a), with respect to whether each Material Contract: (i) such customer or supplier has renewed such contract for Contract is in full force and effect and a valid and binding agreement of the period following Company, enforceable in accordance with its terms, except as the period covered thereby enforcement thereof 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; (ii) such contract permits such customer the Company is not in breach or supplier default in any material respect, and the Company has not taken or failed to terminate such contract on 60 days' take any action which, with notice or less)lapse of time, would constitute a breach or default in any material respect, or permit termination, material modification, acceleration, or the waiver of any right or benefit, as applicable, under such Contract; and
(giii) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge Knowledge of the StockholderSellers, no other party is) is in breach or violation of, or default under, in any of material respect under such Contract; and (iv) the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each Company has not received any written notice that any other party thereto enforceable against to such other partiesMaterial Contract intends to terminate, except insofar as adversely modify, refuse to perform or refuse to renew such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesMaterial Contract.
Appears in 1 contract
Contracts and Commitments. (a) A complete and accurate list of all of the following contracts and agreements (whether written or oral) of the Companies (such contracts and agreements, the contracts and agreements as set forth in Section 4.13(b) of the Disclosure Schedule 3.16 sets and all agreements relating to Intellectual Property set forth all Contracts presently in effect Section 4.12 of the Disclosure Schedule being "Material Contracts") shall be delivered by Seller to Buyer on or before December 15, 1995 and shall constitute Section 4.13(a) of the Disclosure Schedule:
(i) agreements providing for royalty obligations relating to any of the Products which has generated at least $250,000 in revenue within the Companies' last three fiscal years or which is reasonably anticipated to generate revenue of at least $250,000 in fiscal year 1995 or fiscal year 1996;
(ii) agreements providing for advances made with respect to or on account of the Products which remain outstanding and which have not been written off;
(iii) (A) editorial development agreements relating to the Products which have involved or are reasonably anticipated to involve commitments of over $50,000 and which have not been fully performed and (B) distributor, dealer or manufacturer's representative contracts or agreements relating to the Products which are currently offered for sale by either of the Companies (to the extent the obligations under such agreements are not reflected on the Disclosure Schedule lists provided pursuant to Section 4.13(a)(i) and (ii));
(iv) distributor, dealer or manufacturer's representative contracts or agreements which are not terminable on less than 90 days notice without cost or other liability to the Company or Companies party thereto (except for contracts which, in the aggregate, are not material to the NewMedia Business);
(v) sales contracts which entitle any customer to a rebate or right of set-off, to return any product to either of the Companies after acceptance thereof or to delay the acceptance thereof;
(vi) contracts or other commitments with any supplier containing any provision permitting any party other than the Company or Companies party thereto to renegotiate the price or other terms, or containing any pay-back or other similar provision, upon the occurrence of a failure by that Company to meet its obligations under the contract when due or the occurrence of any other event;
(vii) credit agreements, notes, indentures, security agreements, pledges, guarantees of or agreements to acquire any such debt obligation of others or similar documents relating to indebtedness for borrowed money (including without limitation interest rate or currency swaps, ▇▇▇▇▇▇ or straddles or similar transactions) to which Seller either of the Companies is a party or by which any of their respective assets are bound, restricted or encumbered;
(viii) all employment, consulting, severance or termination agreements which require or may require either of the Companies to pay more than $50,000 in connection base salary in the case of employment contracts in any 12-month period;
(ix) agreement, or group of related agreements with the Businesssame party or any group of affiliated parties, includingrequiring payments in excess of $50,000 per year, without limitationunder which either of the Companies has leased or has agreed to lease any property as lessee or lessor;
(x) all deeds, title documents, title reports or similar documents related to any written real property owned by either of the Companies; and
(xi) all contracts, agreements, arrangements or oralunderstandings with Seller or any affiliate or associate (as such terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) of Seller, together with a description of the nature of any applicable affiliate or associate relationship.
(b) Except as set forth in Section 4.13(b) of the Disclosure Schedule, which shall be delivered by Seller to Buyer on or before December 15, 1995:
(ai) commitment, contract, note, loan, evidence no supply or purchase contract of indebtedness, purchase order either of the Companies (or letter group of credit involving any obligation related contracts with the same party): (A) continues for a period of more than six months (including renewals or liability on extensions at the part option of Seller with respect to another party); (B) requires payment by the Business Company or Companies party thereto of more than $5,000 50,000 in any 12-month period; or (and C) is not more than $10,000 in terminable by the aggregate) and not cancelable (Company or Companies party thereto without liability) on not more than 30 days' notice;
(b) lease penalty upon notice of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days or less (Schedule 3.16 indicates excluding any contract or group of contracts with respect to each such lease listed thereon a general description customer of either of the leased itemsCompanies for the sale, termlease, annual rent and renewal options);
(c) material governmental license or regulatory licenses or permits required to conduct rental of Products of either of the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each Companies if such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) group of contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not was entered into in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not NewMedia Business);
(and, to the best knowledge ii) neither of the Stockholder, no other party is) in breach or violation of, or default under, Companies has any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment understanding with respect to payment of Seller enforceable against Seller (A) minimum royalty or license fees or (B) fees, costs and expenses in accordance connection with "work for hire" which, in the case of any such agreement, arrangement or understanding or group of related agreements, arrangements or understandings, provide for payments in excess of $150,000;
(iii) neither of the Companies has any outstanding contract with respect to the employment of any officer, individual, employee, agent, consultant, adviser, salesperson, representative or other person (whether of a legally binding nature or in the nature of informal understandings) on a full-time, part-time, contract or consulting basis which is not terminable by the Company or Companies party thereto on notice of 30 days or less without cost or other liability to the Company or Companies party thereto, including without limitation any penalty or premium or provision for the payment of any bonus or commission based on sales or earnings;
(iv) neither of the Companies has any pension, profit-sharing, bonus, severance pay, retirement, hospitalization, insurance, stock purchase, stock option or other benefit plan, arrangement, understanding or agreement with or for the benefit of any Person (a "Benefit Plan") or any other employment or consulting agreement that contains any severance or termination pay, liability or obligation;
(v) neither of the Companies has any Benefit Plan other than group insurance plans applicable to employees generally;
(vi) neither of the Companies has any employee to whom it is paying base salary at an annual rate of more than $100,000 for services rendered;
(vii) neither of the Companies is restricted by any agreement from carrying on the NewMedia Business in any material respect anywhere in the world (other than by geographic or use restrictions contained in licenses relating to Intellectual Property);
(viii) neither of the Companies has any outstanding loan to any Person, other than travel advances to employees for travel and entertainment expenses in the ordinary course of the NewMedia Business;
(ix) neither of the Companies has any power of attorney outstanding (except those granted in the ordinary course of the NewMedia Business) or any obligation or liability (whether absolute, accrued, contingent or otherwise), as surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the obligation of any Person;
(x) there exists no voting trust, stockholders' agreement, pledge agreement or buy-sell agreement relating to any securities of either of the Companies which is or will be in effect as of the Closing;
(xi) neither of the Companies has any agreement or obligation (contingent or otherwise) to issue or sell or to repurchase or otherwise acquire or retire any shares of its respective termscapital stock or any of its other equity securities; and
(xii) neither of the Companies has any other contract which is material to its business, operations or prospects or any other contract, instrument, commitment, plan or arrangement, a copy of which would be required to be filed with the SEC as an exhibit to a registration statement on Form S-1, if that Company were registering securities under the Securities Act.
(c) The Material Contracts constitute all contracts, agreements and arrangements necessary for the conduct of the NewMedia Business in substantially the same manner as it is presently conducted. Each Material Contract is, to the best knowledge of Seller and the Stockholder, a legalSeller, valid and binding agreement, arrangement or commitment of each on the other party or parties thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable (subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights and remedies generally and except as general principles of equity) and is in full force and effect and shall continue in full force and effect without penalty or other adverse consequence. Neither of the Companies nor, to the availability best knowledge of equitable remediesSeller, any other party to any Material Contract is in breach of, or default under, any Material Contract, which breach or default has or could reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets (a) Except as set forth all on the attached Contracts presently in effect to which Seller Schedule, neither the Company nor any of its Subsidiaries is a party in connection with the Business, including, without limitation, to any written or oralwritten:
(ai) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit contract involving any obligation or liability on the part of Seller with respect to the Business payments of more than $5,000 (500,000 per year and not more relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets, other than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticePermitted Liens;
(bii) lease contract for joint ventures;
(iii) contract providing for severance, retention, change of personal property with respect to the Business control or other similar payments involving any annual expense payments in excess of $5,000 and not cancelable without liability within 30 days 100,000;
(Schedule 3.16 indicates with respect iv) license or royalty agreement involving expected payments of more than $500,000 in any 12 months covered by such license or agreement;
(v) contract that, to each such lease listed thereon a general description the knowledge of the leased itemsCompany, term, annual rent would impose any restrictions upon the ability of the Company and renewal optionsits Subsidiaries from freely engaging in their businesses anywhere in the world;
(vi) guaranty of any obligation of any Person (other than the Company or its Subsidiaries);
(cvii) material governmental contract relating to the supply, manufacturing, distribution, marketing, advertising or regulatory licenses promotion of products or permits required to conduct services (whether by the Business as presently conducted;
(dCompany or its Subsidiaries or for the Company or its Subsidiaries) contracts or agreements containing covenants limiting the freedom of Seller to engage involving in any line such case payments of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of more than $2,000 3,000,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as other than sales or purchases made pursuant to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not orders in the ordinary course of business);
(viii) contract relating to the pending acquisition or sale of a business having a fair market value in excess of $1,000,000;
(ix) consulting agreement providing for payments thereunder in excess of $250,000 in the aggregate; it being understood that with respect to each category listed above for or
(x) contract under which a dollar amount threshold has been established, any item within such category with a value less Person (other than the dollar Company or any Subsidiary) is advanced or loaned an amount specified shall be deemed immaterial. Seller exceeding $300,000; or
(xi) contract which is not (and, to the best knowledge a “material contract” as that term is defined in Item 601(b)(10) of Regulation S-K of the Stockholder, no other party isSEC.
(b) Neither the Company nor any of its Subsidiaries is in breach material violation of or in material default under (nor does there exist any condition which upon the passage of time or the giving of notice would cause such a violation of, of or default under, ) any of contract required to be disclosed on the attached Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other partiesSchedule, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating set forth on the attached Contracts Schedule.
(c) The Company has made available to or affecting creditors' rights generally Buyer true and except as to correct copies of all contracts listed on the availability of equitable remediesattached Contracts Schedule.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 3.16 sets forth all Contracts presently in effect 4.10 lists by subsection each of the contracts and agreements of the types described below, whether written or oral, to which Seller is a party in connection with or is otherwise bound as of the Business, including, without limitation, any written or oral:date hereof (the “Material Contracts”):
(ai) commitmentall Client engagements and similar arrangements pursuant to which Seller has agreed to provide services, contractother than engagements that have been fully performed, noteall amounts have been fully paid by the Client, loan, evidence and no obligations remain to be performed by Seller or the Client;
(ii) contracts prohibiting competition or the disclosure of indebtedness, purchase order trade secrets or confidential information;
(iii) agreements or indentures relating to Indebtedness or placing a Lien on any of the Purchased Assets or letter of credit involving arrangements;
(iv) agreements requiring Seller to make any obligation royalty or liability on commission payments (other than sales commissions paid to employees according to Seller’s standard commissions plan) upon or for the part manufacture, sale or distribution of any products or services or the use of any Intellectual Property Rights;
(v) nondisclosure or confidentiality agreements pursuant to which Seller is obligated to maintain the confidentiality of, or not to disclose, designated information;
(vi) leases or agreements under which Seller is lessee of or holds or operates any personal property leases;
(vii) broker, distributor, vendor or maintenance agreements;
(viii) other contracts or group of related contracts with respect to the Business same party continuing over a period of more than $5,000 (and six months from the date or dates thereof, not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than terminable by Seller upon 30 days' notice’ or less notice without penalty;
(bix) lease of personal property with respect to the Business involving consulting, maintenance or any annual expense in excess of $5,000 and not cancelable without liability within 30 days other similar agreements, contracts or commitments (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal optionsincluding any employee leasing or outsourcing arrangement);
(cx) material governmental agreements under which independent contractors or regulatory licenses or permits required subcontractors are retained to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller provide services to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors Seller’s Clients on behalf of Seller;
(fxi) contracts which prohibit Seller or, after the Closing, Buyer or any of its Affiliates, from freely engaging in business anywhere in the world;
(xii) contracts with customers and suppliers any officer, director, employee, partner, or Affiliate of Seller with respect (or any individual related by marriage or adoption to any such individual or any entity in which any such Person owns any beneficial interest);
(xiii) agreements relating to ownership of or investments in any business or enterprise, including investments in joint ventures and minority equity investments;
(xiv) powers of attorney executed by or on behalf of Seller pursuant to which Seller has granted another Person authority to act in Seller’s name or on Seller’s behalf;
(xv) agreements which grant a license or sublicense to Intellectual Property Rights, other than non-exclusive licenses for commercially available third-party software granted to Seller and requiring annual payments of less than $10,000;
(xvi) agreements which restrict Seller in its right to use or register any Intellectual Property Rights or permit any other Person to use, enforce or register any Intellectual Property Rights owned by Seller, including license agreements, co-existence agreements, and covenants not to ▇▇▇; or
(xvii) other agreements material to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not entered into in the ordinary course of business; it being understood that .
(b) Seller has made available to Buyer a true and correct copy of all written Material Contracts (and a true and correct written description of any oral Material Contracts), together with respect to each category listed above for which a dollar amount threshold has been establishedall amendments, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (andexhibits, to the best knowledge of the Stockholderattachments, no other party is) in breach or violation of, or default under, any of the Contracts waivers or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effectchanges thereto. Each written Material Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid valid, binding and binding agreement, arrangement or commitment of Seller enforceable by and against Seller in accordance with its respective terms, terms and is, to the best knowledge of Seller is in full force and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other partieseffect, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar laws relating to or affecting the enforcement of creditors' ’ rights generally generally, and except by general principles of equity. Except as set forth on Schedule 4.10, neither Seller nor, to the availability Knowledge of equitable remediesSeller, any other party, is in breach or default under any Material Contract, and no conditions or events exist, such that, after notice or lapse of time or both, would constitute a default under a written Material Contract on the part of Seller or, to the Knowledge of Seller, on the part of any other parties to the Material Contracts, except for any breaches, defaults, terminations, modifications, accelerations, conditions or events which have been cured or waived or which would not be material to the Business.
Appears in 1 contract
Sources: Asset Purchase Agreement (Heidrick & Struggles International Inc)
Contracts and Commitments. Except as set forth in Schedule 3.16 sets forth all Contracts presently in effect to which Seller 4.9, ------------------------- neither the Company nor any Subsidiary is a party to (or in connection with the Businesscase of clause (d) below, including, without limitation, licensee under) any written or oral:
(a) commitment, contract, guaranty, note, loan, evidence of indebtedness, purchase order (other than purchase orders entered into in the ordinary course of business) or letter of credit involving any obligation or liability on the part of Seller with respect to the Business Company or any Subsidiary of more than $5,000 (and not more than $10,000 in the aggregate) 100,000 and not cancelable (without liability) on not more than 30 within ninety (90) days' notice;
(b) lease of personal property with respect to (other than a lease entered into in the Business ordinary course of business) involving any annual expense in excess of $5,000 50,000 and not cancelable (without liability liability) within 30 ninety (90) days (Schedule 3.16 4.9 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) contracts and commitments not otherwise described above or listed in Schedule 4.9 and otherwise materially affecting the Business under contracts not in the ordinary course of business;
(d) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(de) contracts or agreements containing covenants limiting the freedom of Seller the Company or any Subsidiary to engage in any line of business or compete with any person;
(ef) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Sellerthe Company or any Subsidiary;
(fg) contracts with customers and suppliers of Seller with respect contract relating to the Business with a gross value to Seller advertising of the products of the Company and its Subsidiaries requiring payments in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less)100,000; andor
(gh) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 franchise agreement (including purchase orders, other than any distributorship agreement which may be viewed as franchise agreements and undertakings or commitments to under applicable state law). Neither the Company nor any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller Subsidiary is not (and, to the best knowledge of the StockholderSeller, no other party is) in material breach or violation of, or default under, under any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments instruments described in paragraphs (a)-(ga)-(h) aboveabove or listed on Schedule 4.9, where such the breach or violation or default would, of which would either individually or in the aggregate, aggregate have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment the Contracts described in paragraphs (a)-(ga)-(h) above or listed on Schedule 4.9 is in full force and effect and is a legal, valid and binding agreement, arrangement or commitment obligation of Seller enforceable against Seller in accordance with its respective termsthe Company, and is, to the best knowledge of Seller Seller, the other party thereto. A correct and the Stockholder, a legal, valid and binding agreement, arrangement or commitment complete copy of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesContract has been made available for Buyer's review.
Appears in 1 contract
Sources: Stock Purchase Agreement (Beringer Wine Estates Holdings Inc)
Contracts and Commitments. (a) Schedule 3.16 sets forth 3.11(a) lists all of the following Contracts presently (the “Material Contracts”) to which either Seller (as such Contracts relate primarily to the Business) or Medegen is a party, which are currently in effect to which Seller is a party in connection with the Business, including, without limitation, any written or oraland have obligations remaining thereunder:
(ai) commitmentall Contracts to make future capital expenditures or that provide for the future purchase of a Person, contractgoods or services by Seller or Medegen from any one Person, noteother than Contracts that were entered into in the Ordinary Course for the purchase of inventory and involve an expenditure, loanindividually or in the aggregate under such Contract by Seller or Medegen, evidence as applicable, of indebtednessless than $150,000;
(ii) all Contracts that provide for the future sale of products or services by Seller or Medegen, purchase order other than Contracts that were entered into in the Ordinary Course and provide for the sale of products or letter services with a value of credit involving any obligation or liability on the part less than $150,000;
(iii) all Contracts relating to Indebtedness of Seller (with respect to the Business of more than $5,000 (and Business) or Medegen that will not more than $10,000 in be repaid or released at or prior to the aggregate) and not cancelable (without liability) on not more than 30 days' noticeClosing;
(biv) lease all Contracts containing continuing delivery obligations with dealers, distributors or sales representatives in excess of $150,000;
(v) all employment, deferred compensation, severance, bonus, retirement, consulting, management services or non-competition agreements with any Business Employee, officer of Seller or Medegen or full-time consultant providing services to the Business or Medegen whose annual base salary or base wages or annual compensation is equal to an amount greater than $125,000;
(vi) all Contracts providing for any payments that are conditioned, in whole or in part, on a change of control of the Business or Medegen, or any of the transactions of the type contemplated hereby;
(vii) all collective bargaining Contracts, works council Contract, trade union Contracts, and other material Contracts with any union or labor organization to which Seller or Medegen is a party (each a “Collective Bargaining Agreement”);
(viii) all Contracts pursuant to which Seller or Medegen is currently a lessor or a lessee of any property, personal or real, except for any leases of personal property under which the aggregate annual rent or lease payments do not exceed $150,000;
(ix) any Contract concerning a partnership or joint venture;
(x) any Contract involving any restrictions with respect to the Business involving geographical area of operations or scope or type of business of Medegen or Seller or prohibiting Medegen or Seller from competing or soliciting customers;
(xi) any annual expense Contract under which Seller or Medegen has made an advance or loan (other than trade payables, accounts payables or similar trade expenses) to any other Person and in excess of $5,000 and not cancelable without liability within 30 days 150,000;
(Schedule 3.16 indicates with respect to each such lease listed thereon xii) any Contract for the sale or acquisition of a general description business or a significant portion thereof or assets relating thereto (except for any sale or acquisition in the Ordinary Course of the leased items, term, annual rent and renewal optionsInventory that is less than $250,000);
(cxiii) material governmental any power of attorney or regulatory licenses agreement with any Person (other than an officer or permits required Medegen) pursuant to conduct which such Person is granted the Business as presently conductedauthority to legally bind Medegen;
(dxiv) contracts any Assigned Contract under which Seller agrees, or agreements containing covenants limiting any Contract under which Medegen agrees, to indemnify any Person for $200,000 or more (except for Contracts entered into during the freedom of Seller to engage in any line of business Ordinary Course or compete Contracts with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers end users or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or lessinvoiced accounts); and
(gxv) contracts all other Contracts that individually require payment to or by Seller or Medegen of more than $150,000 annually, that cannot be terminated by their terms on less than sixty (60) days’ notice without Liability.
(b) Seller has provided to Buyer prior to the date hereof true, correct and commitments not otherwise described in this Section 3.16 or listed complete copies of all Material Contracts (including any and all amendments and other modifications to such Contracts). Except as disclosed on Schedule 3.16 3.11(b), (i) to Seller’s Knowledge, no Material Contract (including purchase ordersany Material Contract required to be included, franchise agreements and undertakings or commitments to any Governmental Entitybut not so included on Schedule 3.11(a)) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been establishedbreached in any material respect or canceled, or is under material default, by the other party that has not been duly cured or reinstated, (ii) neither Company is in material breach or default under any item within such category with a value less than the dollar amount specified shall Material Contract (including any Material Contract required to be deemed immaterial. included, but not so included on Schedule 3.11(a)), (iii) Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation ofdefault under any Seller Unscheduled Contracts and (iv) to the Seller’s Knowledge, no event has occurred that with the passage of time or the giving of notice or both would result in or constitute a material breach or default underunder any such Material Contract (including any Material Contract required to be included, but not so included on Schedule 3.11(a)) by either Company, or, to Seller’s Knowledge, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where party to any such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse EffectContracts. Each Material Contract or other instrument(including any Material Contract required to be included, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(gbut not so included on Schedule 3.11(a)) above is a legal, valid valid, binding, enforceable and binding agreementcurrently in full force and effect against the applicable Company, arrangement or commitment of Seller enforceable against Seller and to Seller’s Knowledge, the other parties thereto in accordance with its respective terms, and is. Neither Company nor, to the best knowledge Seller’s Knowledge, any party to any Material Contract has repudiated any material provision of Seller and the Stockholder, any such Material Contract. Neither Company has received notice that any party to a legal, valid and binding agreement, arrangement Material Contract intends to cancel or commitment of each other party thereto enforceable against terminate such other parties, except insofar as Material Contract or to exercise or not exercise any material option under such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesMaterial Contract.
Appears in 1 contract
Contracts and Commitments. Section 4.18 of the Disclosure Schedule 3.16 sets forth contains a complete and accurate list of all Contracts presently in effect of the following categories to which Seller Fred Meyer or any of its Subsidiaries is a party in connection with or by which any of ▇▇▇m ▇▇ ▇ound as of the Business, including, without limitation, any written or oraldate of this Agreement:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including including, without limitation, contracts to employ executive officers and other contracts with officers officers, directors or directors stockholders of SellerFred Meyer, and any other Contracts with or for the benefit of Fred ▇▇▇e▇ ▇▇ its affiliates, and all severance, change in control ▇▇ ▇i▇▇▇▇▇ arrangements with any officers, employees or agents of Fred Meyer that will result in any obligation (absolute or continge▇▇) o▇ ▇▇▇d Meyer or any of its Subsidiaries to make any payment to any of▇▇▇▇r▇, ▇▇ployees or agents of Fred Meyer following either the consummation of the transactions co▇▇▇▇p▇▇▇▇▇ hereby, termination of employment, or both;
(b) labor contracts;
(c) material distribution, franchise, license, sales, agency or advertising contracts;
(d) Contracts for the purchase of inventory which are not cancelable (without material penalty, cost or other liability) within 1 year (other than Contracts for the purchase of holiday goods in accordance with customary industry practices) and other Contracts made in the ordinary course of business involving annual expenditures or liabilities in excess of $150,000 which are not cancelable (without material penalty, cost or other liability) within thirty (30)days;
(e) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments relating to the lending of money, whether as borrower, lender or guarantor, in excess of $250,000;
(f) contracts Contracts containing covenants limiting the freedom of Fred Meyer or any of its Subsidiaries to engage in any line of busi▇▇▇▇ ▇▇ ▇▇mpete with customers and suppliers any Person or operate at any location;
(g) powers of Seller with respect attorney;
(h) joint venture or partnership agreements or joint development or similar agreements pursuant to which any third party is entitled to develop any Property and/or Facility on behalf of Fred Meyer or its Subsidiaries;
(i) any other Contract, ▇▇▇▇h▇▇ ▇▇milar or dissimilar to the Business foregoing, which would be material to Fred Meyer and its Subsidiaries taken as a whole;
(j) an▇ ▇▇n▇▇▇▇▇ with a gross value to Seller any federal, state or local government; and
(k) Contracts involving annual expenditures or liabilities in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial250,000. Seller is not (and, to the best knowledge True copies of the Stockholder, no other party is) written Contracts identified in breach or violation of, or default under, any Section 4.18 of the Contracts Disclosure Schedule have been delivered or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, made available to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesSmith's.
Appears in 1 contract
Sources: Merger Agreement (Meyer Fred Inc)
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently Except as (i) expressly referred to in effect the notes to which Seller is a party the USAB Financial Statements or the USAB Interim Financial Statements or (ii) contained in connection with SECTION 5.14 of the Business, including, without limitation, any written or oralUSAB Due Diligence Schedules:
(a) commitmentUSAB is not party to or bound by any Contract which is related to its business, contractoperations, notefinancial condition or prospects or which involves, loanor is reasonably likely to involve, evidence of indebtedness, purchase order the expenditure or letter of credit involving any obligation or liability on receipt by USAB after the part of Seller with respect to the Business USAB Interim Balance Sheet Date of more than Fifty Thousand Dollars ($5,000 (50,000). The legal enforceability after the Closing by USAB of its Contracts will not be affected in any material respect by the execution and not more than $10,000 in delivery of this Agreement and the aggregate) and not cancelable (without liability) on not more than 30 days' notice;consummation of the transactions contemplated hereby.
(b) lease USAB is not a party to or bound by (i) any Contract with stockholders or former stockholders, or any Person known to USAB to be an Affiliate or Associate of a stockholder or former stockholder; (ii) any Contract with officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors or dealers that are not cancelable by USAB at will without liability, penalty or premium; (iii) any Contract providing for the payment of any bonus or commission based on sales or earnings; (iv) any Contract that contains any severance or termination or change in control pay liability or obligation; (v) any Contract for the purchase or sale of any security; (vi) any Contract for the borrowing of money (or guarantee of indebtedness); (vii) any Contract for leasing personal property with respect to the Business involving any which requires annual expense payments in excess of Twenty-Five Thousand Dollars ($5,000 and 25,000) or the term of any of which exceeds three (3) years; (viii) any Contract relating to express product or service warranties by USAB; (ix) any Contract containing a covenant not cancelable without liability within 30 days to compete by USAB; (Schedule 3.16 indicates with respect x) any Contract granting a Lien (other than a USAB Permitted Ownership Lien or USAB Permitted Real Estate Lien), security interest or other material encumbrance on any property or asset ofUSAB; (xi) any Contract providing for exclusive purchases by or from USAB or containing a requirement purchase obligation; (xii) any Contract providing for administration, service, utilization review, adjustment, claims management or similar function relating to each such lease listed thereon a general description insurance or litigation ofUSAB; or (xii) any Contract for the sale of any of the leased itemsassets, term, annual rent and renewal options);
(c) material governmental property or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom rights ofUSAB outside of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood , except as contemplated by this Agreement.
(c) USAB has not given any power of attorney (whether revocable or irrevocable) to any Person that with respect to each category listed above is or may hereafter be in force for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller purpose whatsoever.
(d) Each Contract ofUSAB is not (valid and binding upon USAB and, to the best knowledge of the StockholderUSAB's knowledge, no each other party is) thereto and is in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid full force and binding agreement, arrangement or commitment of Seller effect and enforceable against Seller by USAB in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, terms except insofar (i) as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws Laws of general application relating to or affecting creditors' rights generally rights, including the effect of statutory or other Laws regarding fraudulent conveyances and except preferential transfers, and (ii) for the limitations imposed by general principles of equity or public policy considerations, including as to enforcement of indemnification provisions. USAB has performed all material obligations required to be performed by it to date under each Contract to which USAB is a party, and there has been no breach or default or, to USAB's knowledge, a claim of default by USAB or by any other party thereto under any provision thereof and no event has occurred which, with or without notice, the availability passage of equitable remediestime or both, would constitute a default by USAB or, to USAB's knowledge, any other party thereto under any provision thereof or which would permit modification, acceleration or termination of any Contract by any other party thereto or by USAB.
(e) True, complete and correct copies of each of the Contracts expressly referred to in the notes to USAB's financial statements, other than the Contracts that have been filed with the USAB SEC Reports prior to the date of this Agreement, have heretofore been provided to LABN by USAB.
Appears in 1 contract
Sources: Asset Purchase Agreement (Las Americas Broadband Inc)
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect Section 3.10 of the Company Disclosure ------------------------- Schedule, contains a list of, and true, correct and complete copies (or descriptions thereof, if oral) have been delivered to Merger Partner of the following contracts and agreements (other than retransmission consent agreements, true, correct and complete copies of which Seller is shall be delivered by Company to Merger Partner within five (5) days of the date hereof) (each a party in connection with the Business, including, without limitation, any written or oral:"Material Contract"):
(a) commitment, contract, note, loan, evidence all programming and network affiliation agreements of indebtedness, purchase order Company or letter of credit involving any obligation Company Subsidiary or liability on the part of Seller with respect that relate to the Business operations of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeCompany or any Company Subsidiary;
(b) lease all contracts or agreements that provide for employment of personal property with respect to the Business involving a Person by Company or any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)Company Subsidiary;
(c) material governmental all leases of real property or regulatory licenses personal property to which Company or permits required to conduct the Business as presently conductedany Company Subsidiary is a party;
(d) all contracts evidencing, creating or agreements containing covenants limiting the freedom relating to any indebtedness of Seller to engage in Company or any line of business or compete with any personCompany Subsidiary;
(e) employment contractsall contracts or agreements evidencing guarantees of any nature of Company or any Company Subsidiary of any indebtedness, including without limitation, contracts to employ executive officers and other contracts with officers liabilities or directors obligations of Sellerany Person;
(f) any contracts with customers and suppliers of Seller with respect to or agreements prohibiting, limiting or otherwise restricting the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer activities of, or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer competition by, Company or supplier to terminate such contract any Company Subsidiary or otherwise imposing any significant non-monetary obligation or responsibility on 60 days' notice Company or less)any Company Subsidiary; and
(g) any other contract or agreement that (i) provides for payments in excess of $25,000 for any individual contract or agreement; provided that undisclosed contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts involving payments of less than $25,000 do not in the ordinary course aggregate involve payments exceeding $250,000; or (ii) requires performance by Company or any Company Subsidiary of business; it being understood that with respect to each category listed above any obligation for which a dollar amount threshold has been established, any item within such category with a value less than period of time extending beyond twelve (12) months from the dollar amount specified shall be deemed immaterial. Seller Effective Time or is not terminable by Company or any Company Subsidiary without penalty upon ninety (and, to the best knowledge 90) days or less notice. Except as set forth in Section 3.10 of the Stockholder, no other party isCompany Disclosure Schedule: (i) all Material Contracts are in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a full force and effect and constitute legal, valid and binding agreementobligations, arrangement or commitment of Seller enforceable against Seller in accordance with its respective termstheir terms (such enforceability subject to the Enforceability Exceptions) of Company and any Company Subsidiary as applicable, and isand, to the best Knowledge of the Company, the other parties thereto; (ii) neither Company nor any Company Subsidiary, nor, to the Knowledge of Company, any other party to any Material Contract, is in default under or in violation of, in any material respect, any Material Contract (nor does there exist any event or condition related to Company or any Company Subsidiary or, to the Knowledge of Company, any other event or condition, which upon the passage of time or the giving of notice or both would cause such a default under or violation of such Material Contract by Company or any Company Subsidiary or, to the knowledge of Seller and the StockholderCompany, a legal, valid and binding agreement, arrangement or commitment of each any other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesany Material Contract).
Appears in 1 contract
Sources: Merger Agreement (Media General Inc)
Contracts and Commitments. (a) Schedule 3.16 2.10 of Seller Disclosure Schedule sets forth a true, complete and correct list (including all Contracts presently in effect amendments, modifications or supplements with respect thereto) of the following agreements (written or oral) to which Seller Parent or Seller, as applicable, is a party in connection with party, that relate to the Business, including, without limitation, to the extent any written such agreement (i) is currently in effect or oral:(ii) has been terminated on or prior to the date hereof but contains provisions that survived such termination and such provisions are currently in effect (other than provisions that customarily survive such termination and do not relate to the principal business purpose of such agreement and which do not create any material or ongoing financial or other Liability to Buyer):
(ai) commitment, contractany loan agreement, note, loanmortgage, evidence of indebtednessindenture, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect security agreement and other agreement and instrument relating to the Business borrowing of more than $5,000 money;
(ii) any agreement (or group of related agreements) between Parent or Seller and not any customer or vendor of Parent or Seller (including any Affiliates of either) relating to the Business;
(iii) any agreement (or group of related agreements) under which Parent or Seller has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations and operating lease commitments) involving more than $10,000 in or under which Parent or Seller has imposed (or may impose) a Lien on any of the aggregate) and not cancelable (without liability) on not more than 30 days' noticeassets, tangible or intangible, of the Business;
(biv) lease any agreement for the disposition of personal property with respect to any portion of the assets of the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not than sales in the ordinary course of business; it being understood that ) or any agreement for the acquisition of the assets or business of any other entity, relating to the Business (other than purchases in the ordinary course of business);
(v) any agreement concerning area-of-interest, stand-still, non-competition, exclusivity, non-solicitation, non-recruitment or other such provisions or covenants that, in each case, restricts any conduct of the Business with respect to each category listed above geographical area of operations or scope or type of business of Parent or Seller, other than non-competition agreements entered into between Parent or Seller and employees or consultants and that do not restrict Parent or Seller with respect to non-competition;
(vi) any employment or consulting agreement (other than offer letters for which a dollar amount threshold has been establishedat-will employment for employees that do not provide for any severance benefit upon such employee’s termination), any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, for employees or consultants providing services solely to the best knowledge of Business;
(vii) any collective bargaining or similar agreement relating to the StockholderBusiness;
(viii) any agreement concerning equal opportunity or similar hiring or contracting requirements, no provisions or covenants;
(ix) any agreement with any Governmental Authority; and
(x) any other party is) in breach or violation ofmaterial agreement, or default underincluding a guarantee, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or not entered into in the aggregateordinary course of business that relates to the Business.
(b) All contracts, have a agreements and instruments listed or which are required to be listed on Schedule 2.10 of Seller Disclosure Schedule, except those contracts, agreements and instruments listed on Schedule 1.1(b)(vii), and all other Assumed Contracts (collectively, the “Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described Contracts”) are valid and are in paragraphs (a)-(g) above is a full force and effect and constitute legal, valid and binding agreementobligations of Parent or the Seller and, arrangement or commitment to the knowledge of Seller Parent and Seller, of the other parties thereto, and are enforceable against Seller in accordance with its their respective termsterms subject, and isin each case, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting creditors' the rights of creditors generally and except as general principles of equity and constitute all contracts, agreements and instruments to which Parent, Seller, or any of their respective assets are bound relating to the availability Business. Neither Parent nor Seller is in default and to the knowledge of equitable remediesParent and Seller, no other party is in default in complying with any provisions of any Material Contract, and to the knowledge of Parent and Seller, no condition or event or fact exists which, with notice, lapse of time or both, could constitute a default thereunder on the part of Parent or Seller.
(c) Neither Parent nor Seller is in default under any Assumed Obligation.
(d) Parent and Seller have provided to Buyer accurate and complete copies of all Material Contracts.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 3.16 sets forth 2.13 hereto contains a complete list of each written contract of the Seller that is material to the Seller, including but not limited to the following: (i) all Contracts presently in effect employment contracts between the Seller and its employees, other than those terminable by the Seller at will and without payment or penalty; (ii) all collective bargaining agreements and union contracts to which the Seller is a party in connection party; (iii) all written contracts with the Businessdistributors, includingbrokers, without limitationmanufacturer’s representatives, any written sales representatives, service or oral:
(a) commitmentwarranty representatives, contractcustomers, noteand other persons, loanfirms, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 corporations engaged in the aggregatesale or distribution of the Seller’s products; (iv) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease all presently open purchase orders issued by the Seller in excess of personal property with respect to $5,000, all sales orders received by the Business involving any annual expense Seller in excess of $5,000 that have not yet been completed, and not cancelable all purchase or sales orders that call for delivery or performance on a date more than one year from the date of this Agreement; (v) all written contracts between the Seller or any person or entity that controls, is controlled by, or is under common control with, the Seller or any family member of any such person (such entity or person, being hereinafter referred to as an “Affiliate”); (vi) all written contracts under which the Seller is either a b▇▇▇▇▇ or bailee including without liability within 30 days limitation written contracts for the bailment of vehicles; (Schedule 3.16 indicates with respect vii) all agreements pursuant to each such lease listed thereon which the Seller acquired the Trade Name or a general description substantial portion of its assets; and (viii) all other written executory contracts of the leased itemsSeller reflecting obligations for borrowed money or for other indebtedness or guaranties thereof.
(b) To the best of Seller’s present knowledge and without investigation, term, annual rent and renewal options);the Seller is not a party to any written contract that would restrict it from engaging in any business.
(c) material governmental or regulatory licenses or permits required to conduct To the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors best of Seller;
(f) ’s present knowledge and without investigation, each of the contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders2.13 is valid and binding, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not each has been entered into in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established. To the best of Seller’s present knowledge and without investigation, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge in default of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments contracts described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesthis Section 2.13.
Appears in 1 contract
Sources: Asset Purchase Agreement (United Mine Services, Inc.)
Contracts and Commitments. (a) Schedule 3.16 sets forth 2.13 hereto contains a complete list of each written contract of the Seller that is material to the Seller, including but not limited to the following: (i) all Contracts presently in effect employment contracts between the Seller and its employees, other than those terminable by the Seller at will and without payment or penalty; (ii) all collective bargaining agreements and union contracts to which the Seller is a party in connection party; (iii) all written contracts with the Businessdistributors, includingbrokers, without limitationmanufacturer's representatives, any written sales representatives, service or oral:
(a) commitmentwarranty representatives, contractcustomers, noteand other persons, loanfirms, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 corporations engaged in the aggregatesale or distribution of the Seller's products; (iv) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease all presently open purchase orders issued by the Seller in excess of personal property with respect to $5,000, all sales orders received by the Business involving any annual expense Seller in excess of $5,000 that have not yet been completed, and not cancelable all purchase or sales orders that call for delivery or performance on a date more than one year from the date of this Agreement; (v) all written contracts between the Seller or any person or entity that controls, is controlled by, or is under common control with, the Seller or any family member of any such person (such entity or person, being hereinafter referred to as an "Affiliate"); (vi) all written contracts under which the Seller is either a ▇▇▇▇▇▇ or bailee including without liability within 30 days limitation written contracts for the bailment of vehicles; (Schedule 3.16 indicates with respect Vii) all agreements pursuant to each such lease listed thereon which the Seller acquired the Trade Name or a general description substantial portion of its assets; and (viii) all other written executory contracts of the leased itemsSeller reflecting obligations for borrowed money or for other indebtedness or guaranties thereof.
(b) To the best of Seller's present knowledge and without investigation, term, annual rent and renewal options);the Seller is not a party to any written contract that would restrict it from engaging in any business.
(c) material governmental or regulatory licenses or permits required to conduct To the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors best of Seller;
(f) 's present knowledge and without investigation, each of the contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders2.13 is valid and binding, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not each has been entered into in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established. To the best of Seller's present knowledge and without investigation, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge in default of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments contracts described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesthis Section 2.13.
Appears in 1 contract
Sources: Asset Purchase Agreement (United Mine Services, Inc.)
Contracts and Commitments. Schedule 3.16 sets forth EXECUTION COPY
(a) The Assumed Contracts shall consist of all Contracts presently in effect written or oral contracts to which any Seller is a party or is bound and which (i) are to be performed in connection with whole or in part after the Closing Date and (ii) relate to the Business, includingwhich include, without limitation, any written the contracts listed on Disclosure Schedule 3.07, or oralwith respect to those contracts marked with an asterisk, such portion of the contract that relates to the Business. All such contracts with the following characteristics are listed on Disclosure Schedule 3.07:
(ai) commitment, contract, note, loan, evidence requiring the expenditure of indebtedness, purchase order funds for goods or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense services in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)2,500;
(cii) material governmental any marketing agreement or regulatory licenses understanding including any chain marketing agreement, calendar marketing agreement, agreement for scoreboard or permits required to conduct the Business as presently conductedsign display, promotional discount letter, special arrangements, whether providing for discounts, incentive awards or otherwise;
(diii) contracts or agreements containing covenants limiting restricting the freedom right of any Seller to engage compete, whether by restricting territories, customers or otherwise, in any line of business or compete territory;
(iv) requiring any Seller to purchase its requirements for any goods or services from any one or more parties;
(v) with any personofficer, director, or greater-than-five-percent-shareholder of any Seller with any spouse, in-law, child, sibling or parent of any such person or with any company or other organization in which any of the foregoing has, to Sellers' knowledge, a material direct or indirect financial interest;
(vi) relating to participation in a cooperative, partnership or joint venture;
(vii) imposing confidentiality requirements on any Seller;
(viii) for political contributions or for charitable contributions involving a commitment to make contributions for more than one year or involving more than $2,500 in the aggregate or individually; or
(ix) relating to the distribution of products.
(b) There are no (i) consignments or "sale or return" arrangements; (ii) any agreements requiring any Seller to share any profits, revenues, cash flows or Taxes that EXECUTION COPY relate to the Business; or (iii) guarantees of the indebtedness of any customer of, or supplier to, the Business, or loans or advances other than accounts receivable to such persons or entities.
(c) No Seller has received any notice of cancellation or termination in connection with any Assumed Contract. No party has repudiated any portion of any Assumed Contract. Each Assumed Contract is enforceable in all material respects in accordance with its terms in a manner that obtains for, or imposes upon, the parties the primary benefits and obligations of such agreements.
(d) Upon the consummation of the transaction contemplated by this Agreement, each Assumed Contract will remain in full force and effect on substantially similar terms.
(e) employment contractsTo Sellers' knowledge, including without limitationthere are no pending or threatened bankruptcy, contracts insolvency, or similar proceedings with respect to employ executive officers and other contracts with officers or directors of Seller;any party to any Assumed Contract.
(f) contracts No event has occurred that (whether with customers and suppliers or without notice, lapse of time or the happening or occurrence of any other event) would constitute a default thereunder by any Seller with respect or by any other party to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); andany Assumed Contract.
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments With respect to any Governmental Entity) relating Assumed Contracts that were originally between Consolidated and a third party, such Assumed Contracts have been validly assigned by Consolidated to the Business either or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesboth Sellers.
Appears in 1 contract
Sources: Asset Acquisition Agreement (Coca Cola Bottling Co Consolidated /De/)
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect to which Seller is a party in connection with the Business, including, without limitation, any written or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregateSection 2.13(a) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
Company Disclosure Schedule contains a list (cindicating the clause of this Section 2.13 pursuant to which disclosure is made) material governmental of all of the following written or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) oral contracts or agreements containing covenants limiting (including any and all amendments thereto), other than agreements listed in Sections 2.1(b), 2.8(a), 2.9(a), 2.12(a) and (b), 2.15(b), 2.16 or 2.17(c) of the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers Company Disclosure Schedule and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including than purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not orders made in the ordinary course of business, to which, as of the date hereof, the Company or any of the Company Subsidiaries is a party or by which the Company or any of the Company Subsidiaries is bound (collectively, the "Material Contracts"): (i) any agreements with any present shareholder, employee, officer, director or consultant (or former shareholder, employee, officer, director or consultant to the extent there remain at the date hereof obligations to be performed by the Company or any of the Company Subsidiaries); it being understood (ii) agreements or indentures relating to the borrowing of money; (iii) indemnification agreements or guaranties of any obligation for borrowed money or otherwise; (iv) contracts which prohibit the Company or any of the Company Subsidiaries from freely engaging in business anywhere in the world; (v) any joint venture or profit-sharing agreement (other than with employees); (vi) contracts, not entered into in the ordinary course of business on an arm's- length basis, that are continuing over a period of more than six months from the date hereof and are not terminable by the Company or the Company Subsidiary party thereto on 60 days or less notice without penalties or premiums (including contracts to provide advertising allowances or promotional services); (vii) any agreements for the purchase by the Company or any of the Company Subsidiaries of any materials, equipment, services, or supplies not entered into in the ordinary course of business on an arm's-length basis, that may not be terminated by the Company or the Company Subsidiary party thereto without penalty upon less than three months' notice; (viii) any agreements or commitments for the acquisition, construction or sale of fixed assets owned or to be owned by the Company or any of the Company Subsidiaries that continue for a period of more than six months from the date hereof and may not be terminated without penalty by the Company or the Company Subsidiary party thereto prior to the expiration of such six-month period; (ix) any agreements that provide for the distribution of goods or services that continue for a period of more than six months from the date hereof and may not be terminated without penalty by the Company or the Company Subsidiary party thereto prior to the expiration of such six-month period; (x) any agreements or arrangements for the sale of any of the assets, properties, services or rights of the Company or any of the Company Subsidiaries other than in the ordinary course of business on an arms length basis or for the grant of any preferential rights to purchase any of its assets, properties or rights or that require the consent of any third party to the transfer and assignment of any of its assets, properties or rights; (xi) any agreements with respect any third party to each category listed above develop any intellectual property, franchise or marketing concepts involving payments by the Company or the Company Subsidiary party thereto in excess of Cdn. $10,000; (xii) sponsoring agreements involving payments by the Company or the Company Subsidiary party thereto in excess of Cdn. $10,000; (xiii) any commitments for charitable contributions or any other agreements between the Company or any Company Subsidiary and the ▇▇▇ ▇▇▇▇▇▇ Children's Foundation; and (xiv) any other agreements which (A) are material to the Business of the Company and the Company Subsidiaries taken as a dollar amount threshold has whole or (B), except as disclosed in Section 2.13(b) of the Company Disclosure Schedule, pursuant to the terms of which the consent of a third party would be required for the consummation of the transactions contemplated hereby or by the Transaction Agreements.
(b) Except as disclosed in Section 2.8(a) or Section 2.13(b) of the Company Disclosure Schedule, neither the Company nor any of the Company Subsidiaries is a party to any contract, agreement or understanding which contains a "change in control" or similar provision or any other provision which could be triggered by the execution and delivery of, or the consummation of the transactions contemplated by, this Agreement or the Transaction Agreements; and the execution and delivery of, or the consummation of the transactions contemplated by, this Agreement or the Transaction Agreements will not (either alone or upon the occurrence of any additional acts or events) by reason of any such provision result in any payment (whether of severance pay or otherwise) becoming due from the Company or any of the Company Subsidiaries to any person.
(c) On or before the Delivery Date, complete copies of all Material Contracts will be provided to Wendy's or Wendy's solicitors. All Material Contracts have been establishedduly executed and are valid and binding and in full force and effect and, except as set forth in Section 2.13(c) of the Company Disclosure Schedule, none of the Company, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (andCompany Subsidiary or, to the best actual knowledge of Seller or the StockholderCompany, no any other party is) in breach or violation to any Material Contract has breached any provision of, or is in default under, the terms of any Material Contract and no event has occurred which with the lapse of time or the Contracts giving of notice or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such both would constitute a breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other by any party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesthereto.
Appears in 1 contract
Sources: Share Purchase Agreement (Wendys International Inc)
Contracts and Commitments. Schedule 3.16 sets forth (a) SCHEDULE 4.13(a) contains a complete and accurate list, and the Sellers have delivered to Buyer true, correct and complete copies, of:
(i) each Contract involving remaining payments of at least $50,000 that involves performance of services or delivery of goods or materials by any Seller;
(ii) each Contract involving remaining payments of at least $50,000 that involves performance of services or delivery of goods or materials to any Seller;
(iii) each Contract obligating any Seller to purchase of all Contracts presently in effect to which Seller is or substantially all of its requirements of a party in connection with the Businessparticular product from a supplier;
(iv) each Contract or plan of any Seller, including, without limitation, any written stock option plan, stock appreciation right plan or oral:stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(av) commitmenteach Contract for joint marketing, contractteaming or development to which any Seller is a party;
(vi) each Contract with any dealer, notefranchiser, loanoriginal equipment manufacturer, evidence value-added reseller, or manufacturer's representative to which any Seller is a party;
(vii) each Contract involving payments or other obligations in excess of indebtedness$25,000 pertaining to the Sellers' maintenance or support of its products, purchase order services or letter supplies;
(viii) each Contract for the sale of credit any Seller's products not made in the ordinary course of business;
(ix) each Contract with any sales agent or distributor of products of the Sellers;
(x) each Contract for a license (other than off-the-shelf, fully paid up, shrink wrap software licenses) or franchise (as licensor or licensee or franchisor or franchisee) to which any Seller is a party;
(xi) each Contract involving any arrangement or obligation or liability on the part of Seller with respect to the Business return of more any Seller's products other than $5,000 (and not more than $10,000 on account of a defect in condition, or failure to conform to the aggregate) and not cancelable (without liability) on not more than 30 days' noticeapplicable Contract;
(bxii) lease each Contract between any Seller and the United States government;
(xiii) each Contract which is material to the assets or business of personal property the Sellers;
(xiv) each lease, license and other Contract affecting any leasehold or other interest in any Material Real Property or Material Personal Property to which any Seller is a party;
(xv) each licensing agreement or other Contract to which any Seller is a party with respect to Intellectual Property Assets, including agreements with current or former employees, consultants or contractors regarding the Business involving use or disclosure of any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)Intellectual Property Assets;
(cxvi) material governmental or regulatory licenses or permits required each Contract to conduct the Business as presently conducted;
(d) contracts or agreements which any Seller is a party containing covenants limiting that in any way purport to restrict the business activity of any Seller or any of the employees of any Seller or limit the freedom of any Seller or any of the employees to engage in any line of business or to compete with any personPerson or hire any Person;
(exvii) employment contracts, including without limitation, contracts to employ executive officers each agreement between any Seller and other contracts with officers an officer or directors director of Sellerany Seller or any Affiliate of any of the foregoing;
(fxviii) contracts with customers each power of attorney granted by any Seller that is currently effective and suppliers of Seller with respect to the Business with a gross value to outstanding;
(xix) each Contract for capital expenditures by any Seller in excess of $2,000 per 50,000;
(xx) each agreement of any Seller containing restrictions with respect to the payment of dividends or other distributions in respect of its capital stock;
(xxi) each stock purchase, merger or other similar agreement pursuant to which any Seller acquired any material assets (other than capital expenditures), and all relevant documents and agreements delivered in connection therewith;
(xxii) each other agreement to which any Seller is a party having an indefinite term or a fixed term of more than one (1) year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether other than those that are terminable at will or upon not more than thirty (i30) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice by any Seller without penalty) or less)requiring payments by any Seller of more than $50,000 per year; and
(gxxiii) contracts and commitments not otherwise described in this Section 3.16 each standard form of agreement pursuant to which any Seller provides services or goods to customers.
(b) Each of the Contracts listed on Schedule 3.16 SCHEDULE 4.13
(including purchase ordersa) hereto (the "MATERIAL CONTRACTS") is valid, franchise agreements binding and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within enforceable against such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the StockholderSellers, no against the other party isparties thereto (except; (a) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium reorganization or similar laws relating to or affecting creditors' rights generally generally; and (b) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefore may be brought); each Seller is in full compliance with all terms and conditions of each Material Contract to which it is a party; and, except as to the availability of equitable remedies.set forth on SCHEDULE
Appears in 1 contract
Contracts and Commitments. (a) Seller has delivered to Buyer a correct and complete copy of each Purchased Contract set forth on Schedule 3.16 sets forth all Contracts presently 1.01(a)(1) and a written summary of each oral Purchased Contract referred to in effect Schedule 1.01(a)(1). With respect to which Seller is a party in connection with the Business, including, without limitation, any written or oraleach Purchased Contract:
(ai) commitmentthe Purchased Contract is valid and enforceable against Seller, contractand, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business Knowledge of more than $5,000 Seller, against each other individual, corporation, partnership, association, limited liability company, trust, unincorporated organization, other entity or group (and as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended) (each, a “ Person”) party thereto, subject to the Equitable Remedies Exception;
(ii) neither Seller nor, to the Knowledge of Seller, any other party is in material breach of any Purchased Contract; and
(iii) Seller has not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;and, to its Knowledge, no other party has repudiated any provision of any Purchased Contract.
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and Except for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not orders accepted in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been establishedthe Business, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (andparty to or bound by any material distributor, dealer, sales representative or other similar contract relating to the best knowledge Business in the United States, other than those that can be terminated on thirty (30) days notice without penalty.
(c) Except as set forth on Section 2.07(c) of the StockholderDisclosure Schedules, no other party is) in breach neither Seller nor any of its Affiliates is bound to or violation of, or default under, bound by any of the Contracts following contracts:
(i) any contract material to the Business or Purchased Assets under which (A) any Intellectual Property licenses are granted to Seller or its Affiliates (other than licenses to Seller of off-the-shelf software available at retail), (B) any covenants not to ▇▇▇ are granted to Seller or its Affiliates, or (C) any rights or options to acquire Intellectual Property (by license or otherwise) are granted to Seller or its Affiliates;
(ii) any contract material to the Business or Purchased Assets under which (A) any Intellectual Property licenses are granted by Seller or its Affiliates (or are obligated to be granted by Seller or its Affiliates), (B) any covenants not to ▇▇▇ are granted by Seller or its Affiliates, or (C) any rights or options to acquire Intellectual Property (by license or otherwise) are granted by Seller or its Affiliates; and
(iii) any contract (A) concerning nonsolicitation of customers of the Business; (B) that would limit the freedom, immediately after the Closing, of a purchaser of the Purchased Assets to engage, participate or compete with any other Person in any line of business, or to make use of any Purchased Intellectual Property in the United States and/or Canada; or (C) granting most favored nation pricing, exclusive sales, distribution, marketing or other instrumentsexclusive rights, obligationsrights of refusal, evidences rights of indebtedness first negotiation or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or similar rights and/or terms to any Person in the aggregateUnited States and/or Canada, have which terms would be applicable to a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence purchaser of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and Purchased Assets immediately after the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesClosing.
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 3.16 sets forth all Contracts presently in effect to which Seller 3.1(b) is a party to or bound by any oral or written contract, obligation or commitment of any type in connection with any of the Business, including, without limitation, any written or oralfollowing categories:
(ai) commitmentagreements or arrangements that contain severance pay, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller understandings with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticetax arrangements, understandings with respect to expatriate benefits, or post-employment liabilities or obligations;
(bii) lease agreements or plans under which benefits will be increased or accelerated by the occurrence of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased itemstransactions contemplated by this Agreement, term, annual rent and renewal options)or under which the value of the benefits will be calculated on the basis of any of the transactions contemplated by this Agreement;
(ciii) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) agreements, contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers commitments currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) force relating to the Business disposition or otherwise affecting the Business under contracts not acquisition of assets other than in the ordinary course of business; it being understood that , or relating to an ownership interest in any corporation, partnership, joint venture or other business 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 sole 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 (B) 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 each category listed above a change of control of Seller or any of the Seller Subsidiaries;
(ix) agreements, contracts or commitments for which 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);
(x) any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the exchange of currency; or
(xi) any agreement, contract or commitment otherwise required to be filed as an exhibit to a dollar amount threshold has been establishedperiodic report under the Exchange Act, as provided by Rule 601 of Regulation S-K promulgated under the Exchange Act. Each contract, agreement or commitment of the type described in this Section 3.15 is referred to herein as a "SELLER CONTRACT."
(b) Neither Seller nor any item within such category with a value less than of the dollar amount specified shall be deemed immaterial. Seller is not (andSubsidiaries, nor to the best knowledge of the Stockholder, no Seller any other party is) in breach to a Seller Contract, 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 expected to cause such a breach, violation of, or default under), any of the Contracts Seller Contract, other than any breaches, violations or other instrumentsdefaults which have not had, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default wouldcould not reasonably be expected to have, individually or in the aggregate, have a Seller Material Adverse Effect. .
(c) Each Seller Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legalvalid, valid binding and binding agreement, arrangement or commitment enforceable obligation of Seller enforceable against Seller and to the knowledge of Seller, of the other party or parties thereto, in accordance with its respective terms, and isin 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 to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability extent enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar other laws relating to or affecting the enforcement of creditors' rights generally governing or by general principles of equity.
(d) An accurate and except as complete copy of each Seller Contract has been made available (including via ▇▇▇▇▇) to the availability of equitable remediesBuyer.
Appears in 1 contract
Sources: Merger Agreement (N2h2 Inc)
Contracts and Commitments. (a) Schedule 3.16 sets 7.19 hereto (with paragraph references corresponding to those set forth below) contains a true and complete list of each of the following contracts (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all Contracts presently in effect amendments and supplements thereto, have been delivered or made available to STH), to which Seller HHTI or any of the HHTI Subsidiaries is a party in connection with the Business, including, without limitation, or by which any written or oralHHTI Hotel is bound:
(ai) commitment, contract, note, loan, evidence all contracts providing for the leasing or management of indebtedness, purchase order one or letter more of credit involving the HHTI Hotels or any obligation portion of one or liability on more of the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeHHTI Hotels;
(bii) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)all HHTI Franchise Agreements;
(ciii) all material governmental contracts providing for a commitment of employment or regulatory licenses consultation services for a specified or permits required to conduct the Business as presently conductedunspecified term;
(div) all contracts with any person containing any provision or agreements containing covenants covenant prohibiting or materially limiting the freedom ability of Seller HHTI or any of the HHTI Subsidiaries to engage in any line of business activity, hire employees, solicit customers or otherwise compete with any person;
(ev) employment contractsall partnership, including without limitationjoint venture, contracts to employ executive officers and stockholders' or other similar contracts with officers or directors of Sellerany person;
(fvi) all notes, debentures, bonds and other evidence of HHTI Indebtedness;
(vii) all contracts with customers relating to any business combination;
(viii) all contracts between or among HHTI or any of the HHTI Subsidiaries, on the one hand, and suppliers any of Seller with respect their stockholders or affiliates, on the other hand;
(ix) all collective bargaining or similar labor contracts; and
(x) all other contracts that involve the annual payment or potential annual payment pursuant to the Business with a gross value terms of such contract, by or to Seller HHTI or any of the HHTI Subsidiaries of more than $25,000 or aggregate payments in excess of $2,000 per year 100,000 that will not (A) be fully performed on or prior to the Effective Time, (B) expire by their terms prior to the Effective Time, or (C) be cancelable by the Surviving Entity, without penalty, upon not more than 30 days notice, including, without limitation, all leases, contracts for purchase and sale of assets, advance booking contracts and banquet contracts.
(b) Each contract required to be disclosed on Schedule 3.16 sets forth all such contracts with customers 7.19 is in full force and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is constitutes a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective termsterms and, and isexcept as disclosed on Schedule 7.19 , neither HHTI, any of the HHTI Subsidiaries nor, to the best knowledge of Seller and the StockholderHHTI, a legal, valid and binding agreement, arrangement or commitment of each any other party thereto enforceable against to such other partiescontract is in violation, except insofar as breach or default under any such enforceability may contract (or with notice or lapse of time or both would be limited by applicable bankruptcyin violation, insolvencybreach or default under any such contract), reorganizationthe effect of which, moratorium individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(c) The HHTI Franchise Agreements disclosed on Schedule 7.19 constitute all of the franchise or similar laws relating agreements necessary to operate and manage the HHTI Hotels and neither HHTI nor any HHTI Subsidiary has received any notice or affecting creditors' rights generally and except as to the availability has any knowledge of equitable remediesan event of default or termination or proposed termination under any such HHTI Franchise Agreement.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 3.16 3.7(a) sets forth all Contracts presently in effect a complete ------------------------- --------------- and accurate list of each Contract:
(i) pursuant to which Seller is a party in connection with the Business, including, without limitation, any written or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense realized net product revenues in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of 1,000,000 during the leased itemstwelve months ended March 28, term, annual rent and renewal options)1999;
(cii) material governmental or regulatory licenses or permits required pursuant to conduct which Seller purchased for re-sale to customers of the Business as presently conductedproducts having a cost to Seller in excess of $10,000,000 during the twelve months ended March 28, 1999;
(diii) contracts which is an Assumed Contract requiring annual payments in excess of $50,000 and pursuant to which Seller leases any of the assets used by Seller to operate the Business;
(iv) that contains covenants or agreements containing covenants limiting other provisions that will limit the freedom of Seller CompuCom, upon acquisition of the Purchased Assets, to engage compete in any line of business or compete with any personPerson or in any area;
(ev) employment contractspursuant to which Seller licenses (either as a licensor or licensee), including without limitationobtains or possesses any rights with respect to, contracts to employ executive officers and other contracts with officers or directors of Sellerthat otherwise relates to, the Intellectual Property;
(fvi) contracts with customers and suppliers of Seller with respect evidencing or relating to any Lien on the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently Purchased Assets which will be in effect immediately following the Closing; or
(vii) evidencing or relating to any employment, bonus, commission, severance, non-compete or confidentiality agreement with or for the benefit of any of the Continued Employees.
(b) Except as set forth in Schedule 3.7(b), Seller has delivered to CompuCom a complete and for each such contract includes a notation accurate copy (redacted as to whether (iany services provisions thereof) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise of each Contract described in this Section 3.16 or listed on Schedule 3.16 subsection (including purchase ordersa) above (or, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course case of business; it being understood that with respect to each category listed above for which confidentiality agreements, the standard form thereof). Except as set forth in Schedule 3.7(b) or as would not have a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (andMaterial Adverse Effect, to the best knowledge Knowledge --------------- of Seller, each of the Stockholder, no other party isAssumed Contracts listed in Schedule 3.7(a) is in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is full --------------- force and effect and constitutes a legal, valid and binding agreementobligation of each other Person that is a party thereto, arrangement or commitment of Seller enforceable against Seller and such other Person in accordance with its respective terms, and issubject to the Enforceability Exceptions. Except as set forth in Schedule 3.7(b), or as would not have a Material Adverse --------------- Effect or as could result from consummation of the transactions contemplated by this Agreement as described on Schedule 3.3, to the best knowledge Knowledge of Seller no event ------------ has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any such Assumed Contract. There are no outstanding rights to renegotiate any material amounts paid or payable to Seller under Assumed Contracts set forth on Schedule 3.7(a) with any Person and no such Person has --------------- made written demand for such renegotiation.
(c) With respect to any Contract listed in response to Section 3.7(a)(ii), Seller represents that it does not have any other material agreements or arrangements, whether written or oral, with the Stockholdervendors or manufacturers parties to such Contract relating to marketing development funds, a legalprice protection, valid stock balancing arrangements, volume incentives and binding agreementrebates, arrangement or commitment of each other party thereto enforceable against such other partiespermitted returns, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium repurchase arrangements or similar laws relating to or affecting creditors' rights generally and except as to arrangements that are not contained in the availability of equitable remedies.applicable Contract listed on Schedule 3.7. ------------
Appears in 1 contract
Sources: Asset Purchase Agreement (Safeguard Scientifics Inc Et Al)
Contracts and Commitments. (a) Except for the Personal Property Leases required to be disclosed pursuant to Section 5.12 hereof, the Employment Agreements required to be disclosed pursuant to Section 5.16 hereof, the Employee Plans required to be disclosed pursuant to Section 5.17 hereof and the insurance policies required to be disclosed pursuant to Section 5.19 hereof, Section (a) of Schedule 3.16 sets forth all 5.20 contains a complete and accurate list of each of the Contracts presently in effect to which Seller either of the Sellers is a party to and which: (i) require the applicable Seller to make payments to any Person in connection excess of $50,000.00 over any period of twelve (12) consecutive months or less; or (ii) provide that the applicable Seller is entitled to receive payments in excess of $50,000.00 over any period of twelve (12) consecutive months or less; or (iii) have been entered into with any Affiliate or any current or former officer, member or manager of the applicable Seller under which such Seller has any continuing liabilities or obligations; or (iv) require any party to purchase or sell a stated portion of its requirements or output from or to another party; or (v) provide for the incurring by the applicable Seller of any Indebtedness for borrowed money, including capital lease obligations; or (vi) provide for the purchase or sale of assets other than in the Ordinary Course of Business; or (vii) limit the freedom of the applicable Seller to conduct the Business in any geographic area; or (viii) contain any assignment or “change in control” provision which would be breached or otherwise activated by the consummation of the transactions contemplated by this Agreement; or (ix) contain terms providing for any guaranty of the payment or performance of any Liabilities of any Person other than the Person making such guarantee; or (x) have a term in excess of one year and are not cancelable upon 30 or fewer days’ notice without any liability, includingpenalty or premium (other than a nominal cancellation fee or charge); or (xi) (other than those Contracts disclosed in clauses (i) through (x) above) (A) are material to the Business and either (B) were entered into other than in the Ordinary Course of Business; or (C) are to be performed other than in the Ordinary Course of Business (all of the Contracts described in Sections 5.20(a)(i) through Section 5.20(a)(xi), without limitationwhether or not disclosed in Section (a) of Schedule 5.20 as required by this Section 5.20(a), any being hereinafter collectively referred to as the “Material Contracts”). Prior to the date hereof the Sellers have delivered or otherwise made available to the Buyer, true, complete and correct copies of the written or oral:Material Contracts including all amendments thereof and modifications thereto and complete descriptions of all oral Material Contracts.
(a) commitmentEach of the Material Contracts is valid, contractbinding and in full force and effect and enforceable against the applicable Seller and, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business knowledge of more than $5,000 the Sellers, against the other parties thereto in accordance with its terms. Except as set forth in Section (b) of Schedule 5.20, the enforceability of the Material Contracts will not be affected in any manner solely by the execution and not more than $10,000 delivery of this Agreement or the effectuation of the transactions contemplated hereby. Except as set forth in Section (b) of Schedule 5.20, no filing with, consent, approval, authorization or other action is required from or of any party to any of the aggregate) Material Contracts in order for such Material Contracts to be valid, binding and not cancelable (without liability) on not more than 30 days' notice;enforceable by Buyer after the Closing Date.
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description Neither of the leased itemsSellers is in default under any of the Material Contracts, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct there is no basis for any valid claim that either of the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage Sellers is in default under any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (Material Contracts and, to the best knowledge of the StockholderSellers, there is no basis for any claim that any other party is) in breach or violation of, or default under, parties to any of the Material Contracts or other instruments, obligations, evidences of indebtedness or commitments described is in paragraphs (a)-(g) above, where default with respect to its obligations under such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesContracts.
Appears in 1 contract
Sources: Asset Purchase Agreement (Gibraltar Industries, Inc.)
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect to which Seller is a party in connection with the Business, including, without limitation, any written or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and;
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. ; and
(h) Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, would have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective termsSeller, and is, to the best knowledge of Seller and the StockholderSeller, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other partiesthereto, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedies.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 3.16 sets forth 5.10 of the Disclosure Schedules contains a list of all Contracts presently in effect of the following types with respect to the Purchased Business to which the Seller or Media Sub is a party in connection with or by which the Business, including, without limitation, any written Seller or oral:Media Sub is bound as of the date hereof (the “Material Contracts”):
(ai) commitmentany Contract pursuant to which the Seller or Media Sub received more than $50,000 over the past twelve (12) months;
(ii) any Contract which obligates, contractor in the reasonable discretion of the Seller or Media Sub is reasonably likely to obligate, notethe Seller or Media Sub to pay more than $50,000 over any future twelve (12) month period in the next five (5) years;
(iii) any indemnification, loanemployment, evidence “change of indebtednesscontrol,” retention, purchase order severance, consulting or letter other Contract with any Business Employee; and
(iv) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or promissory notes relating to the borrowing of money, extension of credit involving any or other indebtedness for borrowed money by the Seller or Media Sub.
(b) Except as would not reasonably be expected to have a Material Adverse Effect, each Material Contract is a valid and binding obligation of the Seller or liability Media Sub and, to the Knowledge of the Seller, of each other party thereto, and is in full force and effect. There exists no material breach or material default (or event that with or without notice or the lapse of time, or both, would constitute a material breach or material default) on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased itemsSeller, termMedia Sub, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (andtheir Affiliates or, to the best knowledge Knowledge of the StockholderSeller, on the part of any other party thereto under any Material Contract. To the Knowledge of the Seller, no other party is) in breach event has occurred that with or violation ofwithout notice or lapse of time would permit termination, modification, or default underacceleration, under any Material Contract. None of the Contracts or other instrumentsSeller, obligationsMedia Sub, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and istheir Affiliates or, to the best knowledge Knowledge of Seller and the StockholderSeller, a legal, valid and binding agreement, arrangement or commitment of each any other party thereto enforceable against such other partieshas repudiated any material provision of any Material Contract. With respect to all Material Contracts that obligate the Seller or Media Sub to meet volume, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium service level or similar laws relating to requirements, the Seller or affecting creditors' rights generally and except Media Sub, as to applicable, has met all such requirements at the availability of equitable remediesmaximum levels required by such Material Contracts.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets (a) Except as set forth all on the Contracts presently in effect to which Seller Schedule, neither the Company nor any of its Subsidiaries is a party to any: (i) collective bargaining agreement or agreement with any union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in connection Section 5.14 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 which is not cancellable without material penalty or without more than ninety (90) days’ notice; (v) agreement or indenture 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 or any of its Subsidiaries; (vi) guaranty of any Indebtedness or other material guaranty; (vii) lease or agreement under which it is lessee of personal property, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred fifty thousand dollars ($150,000); (viii) lease or 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 one hundred fifty thousand dollars ($150,000); (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 BusinessCustomers and Suppliers Schedule; (x) other than purchase orders entered into in the ordinary course of business, including, without limitationcontract or group of related contracts with any customer required to be listed on the Customers and Suppliers Schedule; (xi) Contract which prohibits the Company or any of its Subsidiaries from freely engaging in business in any geographic area; (xii) contracts relating to the granting of any licenses or other rights (including any covenant not to ▇▇▇ or assert or other immunity from suit, any written or oral:
right of first refusal, and any right of first negotiation) with respect to any Intellectual Property (a) commitmentby the Company or any of its Subsidiaries to a third‑party, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect by a third‑party to the Business Company or any of its Subsidiaries, and, the case of (b), involving any annual expense consideration in excess of one hundred fifty thousand dollars ($5,000 150,000) per annum; (xiii) all other agreements affecting the Company’s or any of its Subsidiaries’ ability to use or disclose any Intellectual Property, in each case, other than (A) non-exclusive licenses for commercially available, off‑the‑shelf software used by the Company or any of its Subsidiaries, and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of B) customary non-disclosure agreements entered into by the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract Company for the period following the period covered thereby and (ii) such contract permits such customer disclosure or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not receipt of confidential information in the ordinary course of business; it being understood and (xiv) contracts relating to the acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) of any Person or line 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 line of business; (xv) contract involving aggregate consideration in excess of one hundred fifty thousand dollars ($150,000) and which, in each case, cannot be cancelled by the Company without penalty or without more than ninety (90) days’ notice; (xvi) contract with any Governmental Body, (xvii) contract that with respect to each category listed above provides for which a dollar amount threshold has been establishedany joint venture, any item within such category with a value less than partnership or similar agreement by the dollar amount specified shall be deemed immaterial. Seller Company; (xviii) contract that is not previously disclosed pursuant to this Section 5.10(a) that provides for the indemnification by the Company of any Person or assumption of any Tax or environmental Liability of any Person; or (and, xix) any other contract that is material to the best knowledge Company and not previously disclosed pursuant to this Section 5.10(a).
(b) Each of the Stockholder, no other party is) in breach contracts listed or violation of, or default under, any of required to be listed on the Contracts or other instrumentsSchedule is in full force and effect, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in and is the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreementobligation of the Company or the Subsidiary of the Company which is party thereto, arrangement or commitment and, to the knowledge of Seller the Company, of the other parties thereto enforceable against Seller each of them in accordance with its respective terms. Except as set forth on the Contracts Schedule, and isneither the Company nor any Subsidiary of the Company (as applicable) is in default under any contract listed on the Contracts Schedule, and, to the best knowledge of Seller the Company, the other party to each of the contracts listed on the Contracts Schedule 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 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, (i) no party to any contract listed on the Contracts Schedule has exercised, or expressed in writing delivered to the Company or its Subsidiaries that it will exercise, any termination or amendment rights with respect thereto, and (ii) no party has given written notice of any dispute with respect to any contract listed on the Stockholder, a legal, valid Contracts Schedule. The Company has made available to the Purchaser true and binding agreement, arrangement or commitment correct copies of each other party contract listed on the Contracts Schedule, together with all amendments, modifications or supplements thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedieswaivers thereunder.
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 3.16 sets forth all Contracts presently in effect to which Seller 3.1(b) is a party to or bound by any oral or written contract, obligation or commitment of any type in connection with any of the Business, including, without limitation, any written or oralfollowing categories:
(ai) commitmentagreements or arrangements that contain severance pay, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller understandings with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticetax arrangements, understandings with respect to expatriate benefits, or post-employment liabilities or obligations;
(bii) lease agreements or plans under which benefits will be increased or accelerated by the occurrence of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased itemstransactions contemplated by this Agreement, term, annual rent and renewal options)or under which the value of the benefits will be calculated on the basis of any of the transactions contemplated by this Agreement;
(ciii) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) agreements, contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers commitments currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) force relating to the Business disposition or otherwise affecting the Business under contracts not acquisition of assets other than in the ordinary course of business; it being understood that , or relating to an ownership interest in any corporation, partnership, joint venture or other business 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 sole 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 (B) 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 each category listed above a change of control of Seller or any of the Seller Subsidiaries;
(ix) agreements, contracts or commitments for which 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);
(x) any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the exchange of currency; or
(xi) any agreement, contract or commitment otherwise required to be filed as an exhibit to a dollar amount threshold has been establishedperiodic report under the Exchange Act, as provided by Rule 601 of Regulation S-K promulgated under the Exchange Act. Each contract, agreement or commitment of the type described in this Section 3.15 is referred to herein as a “Seller Contract.”
(b) Neither Seller nor any item within such category with a value less than of the dollar amount specified shall be deemed immaterial. Seller is not (andSubsidiaries, nor to the best knowledge of the Stockholder, no Seller any other party is) in breach to a Seller Contract, 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 expected to cause such a breach, violation of, or default under), any of the Contracts Seller Contract, other than any breaches, violations or other instrumentsdefaults which have not had, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default wouldcould not reasonably be expected to have, individually or in the aggregate, have a Seller Material Adverse Effect. .
(c) Each Seller Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legalvalid, valid binding and binding agreement, arrangement or commitment enforceable obligation of Seller enforceable against Seller and to the knowledge of Seller, of the other party or parties thereto, in accordance with its respective terms, and isin 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 to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability extent enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar other laws relating affecting the enforcement of creditors’ rights governing or by general principles of equity.
(d) An accurate and complete copy of each Seller Contract has been made available (including via E▇▇▇▇) to or affecting creditors' rights generally and except as to the availability of equitable remediesBuyer.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets forth (a) Section 5.10 of the Disclosure Schedules lists under the relevant heading all of the following Contracts presently in effect to which Seller the Company or any of its Subsidiaries is a party and which are in connection with effect as of the Business, including, without limitation, any written or oraldate hereof:
(ai) commitment, contract, note, loan, evidence Contracts with the Major Customers and the Major Suppliers (in each case as defined below);
(ii) Contracts relating to Indebtedness of indebtedness, purchase order the Company or letter any of credit involving its Subsidiaries or any Guarantee by the Company or any of its Subsidiaries of any obligation in respect of borrowed money;
(iii) employment and non-competition agreements with any employee or liability on officer whose base salary is equal to or greater than $150,000;
(iv) consulting agreements with any consultant whose annual Compensation thereunder is equal to or greater than $150,000;
(v) any Contract (or group of related Contracts) for the part purchase, sale, construction, repair or maintenance of Seller with respect to inventory, raw materials, commodities, supplies, goods, products, equipment or other property, or for the Business furnishing or receipt of services, in each case, the performance of which will extend over a period of more than $5,000 (one year, and not more than $10,000 in which provides for aggregate payments to or by the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease Company or any of personal property with respect to the Business involving any annual expense its Subsidiaries in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)250,000;
(cvi) any Contract relating to the acquisition or disposition by the Company or any of its Subsidiaries, at any time during the last three (3) years, of (A) any business (whether by merger, consolidation or other business combination, sale of securities, sale of assets or otherwise) or (B) any material governmental or regulatory licenses or permits required to conduct asset other than in the Business as presently conductedOrdinary Course of Business, and in each case for consideration in excess of $250,000;
(dvii) contracts any Contract concerning or agreements consisting of a partnership, limited liability company, joint venture or similar agreement;
(viii) any Contract containing covenants limiting that in any way purport to (A) materially restrict the Company or any of its Subsidiaries from soliciting, hiring or engaging of any Person or soliciting any customer of the Company or any of its Subsidiaries, (B) materially limit the freedom of Seller the Company or any of its Subsidiaries to engage in any line of business or compete with any personPerson;
(eix) employment contractsany Contract under which the Company or any of its Subsidiaries is, including without limitationor may become, contracts obligated to employ executive officers and other contracts with officers incur any severance pay or directors Change of SellerControl Payments;
(fx) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller any material agency, dealer, distributor, sales representative, marketing or other similar Contract involving aggregate payments in excess of $2,000 per year 250,000;
(Schedule 3.16 sets forth xi) any Contract, other than Leases of the Leased Real Property, relating to the lease or license of any material asset having a value of in excess of $250,000 annually, including Proprietary Rights (and including all such contracts customer license and maintenance agreements other than licenses of commercially available software) that is not included on Section 5.11(b) of the Disclosure Schedules or that involves aggregate payments in excess of $250,000 annually;
(xii) any Contract with customers and suppliers currently a Governmental Authority involving aggregate payments, contributions, investments, or expenditures in effect and for each such contract includes a notation as excess of $250,000;
(xiii) any Contract under which the Company or any of its Subsidiaries has advanced or loaned an amount to whether (i) such customer any of its Affiliates or supplier has renewed such contract for employees other than in the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less)Ordinary Course of Business; and
(gxiv) contracts any other written Contract between the Company or any of its Subsidiaries, on the one hand, and commitments not otherwise described any Seller (or Affiliate or Family Member thereof), on the other hand, that will continue in this Section 3.16 effect after the Closing.
(b) The Company has delivered or made available to the Purchaser accurate and complete copies of each written Contract listed on Schedule 3.16 (including purchase ordersSection 5.10 of the Disclosure Schedules, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business in each case, as amended or otherwise affecting the Business under contracts not modified and in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold effect.
(c) No Material Company Contract has been established, breached in any item within such category with a value less than material respect or canceled or repudiated by the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) which has not been duly cured or reinstated. Neither the Company nor any of its Subsidiaries is in material breach or violation of, or default under, any such Material Company Contract that has not been validly waived cured or waived. Each Material Company Contract is (i) a valid, binding and enforceable obligation of the Contracts Company or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective termsSubsidiaries, and is, to the best knowledge Knowledge of Seller and the StockholderCompany, a legal, valid and binding agreement, arrangement or commitment of each other party thereto thereto, (ii) in full force and effect, and (iii) subject to obtaining any necessary consents disclosed in Sections 5.3(b) and 5.5 of the Disclosure Schedules, will continue to be so enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating and in full force and effect on identical terms following the consummation of the Contemplated Transactions (determined without regard to or affecting creditors' rights generally any actions of Purchaser from and except as to after the availability of equitable remediesClosing).
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect to which Seller is a party in connection with the Business, including, without limitation, any written or oral:
(a) commitmentThe Company is not a party to or bound by any agreements, contractcontracts or commitments which individually or when aggregated with all related agreements, notecontracts or commitments, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect are material to the Business business, operations, condition (financial or otherwise), liabilities, assets, earnings or working capital of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeCompany or that provide for the grant of any preferential rights to purchase or lease any of the Company Assets;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description The enforceability of the leased itemsagreements, term, annual rent contracts and renewal options)commitments referred to in subsections (a-h) of this Section 3.13 will not be affected in any respect by the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby;
(c) material governmental No purchase contracts or regulatory licenses commitments of the Company regarding the Parowax Business or permits required otherwise are in excess of the normal, ordinary and usual requirements of the Company, 21 or to conduct the Business as presently conductedbest knowledge of the Company, were entered into at prices materially in excess of those available in the industry in arm's length transactions on the respective dates thereof;
(d) The Company is not a party to or bound by any outstanding agreements, arrangements or contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any personof its officers, employees, agents, consultants, advisors, salesmen or sales representatives that (A) are not cancelable by it on notice of not longer than 30 days and without the imposition of any liability, penalty or premium, (B) require non-cancelable payment by the Company of over $20,000, or (C) provide for any bonus or other payment based on the sale of the Company or any portion thereof;
(e) The Company is not a party to or bound by any employment contractsagreement, including without limitation, contracts to employ executive officers and consulting agreement or any other contracts with officers agreements that contains any provision for severance or directors of Sellertermination pay liabilities or obligations;
(f) contracts with customers and suppliers of Seller with respect The Company is not a party to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether or bound by:
(i) such customer any mortgage, indenture, note, installment obligation or supplier has renewed such contract other instrument, agreement or arrangement for or relating to any borrowing of money by the period following the period covered thereby and Company;
(ii) such contract permits such customer any guaranty, direct or supplier to terminate such contract on 60 days' notice indirect, by the Company of any obligation for borrowings or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase ordersotherwise, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not excluding endorsements made for collection in the ordinary course of business;
(iii) any obligation to make payments, contingent or otherwise, of over $20,000 arising out of any prior acquisition of the business, assets or stock of other persons;
(iv) any collective bargaining agreement with any labor union;
(v) any lease or similar arrangement for the use by the Company of personal property requiring payments by the Company, on an annual basis, of over $20,000;
(vi) any agreement containing noncompetition or other limitations restricting the conduct of the business of the Company; it being understood that and
(vii) any partnership, joint venture or similar agreement.
(g) Neither the Company nor any of its officers, directors, shareholders or affiliates is a party to or bound by any agreement (other than this Agreement) or arrangement for the sale of any of the assets (other than in the ordinary course of business and consistent with past practice) or capital stock of Bromar or the Subsidiaries or for the grant of any preferential rights to purchase any of the assets or capital stock of Bromar or the Subsidiaries; and 22
(h) The Company is not bound by any agreement to redeem the Common Shares held by any shareholder, which agreement will not be effectively and properly terminated by the consummation of the Merger.
(i) With respect to each category contract and agreement listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge in Section 3.13 of the StockholderDisclosure Schedule, no other party isexcept as set forth therein, (i) each of such contracts and agreements is valid, binding and in breach or violation of, or default under, any of full force and effect and is enforceable by the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller Company in accordance with its respective terms, and is, subject to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws reorganization and other Laws and judicial decisions of general applicability relating to or affecting creditors' rights generally and except as to general principles of equity; (ii) there have been no cancellations or threatened cancellations thereof nor are there any outstanding material disputes thereunder; (iii) neither the availability Company, nor any other party is in breach of equitable remediesany material provision thereof; and (iv) there does not exist any default under, or any event or condition which with the giving of notice or passage of time or both would become a breach or default under, the terms of any such contract or agreement on the part of the Company or on the part of any other party thereto.
(j) The Company has delivered or made available to MSSC California or Marketing Specialists true and complete copies of each written contract or agreement listed in Section 3.13 of the Disclosure Schedule and true and accurate summaries of any oral agreement listed thereon.
Appears in 1 contract
Sources: Merger Agreement (Richmont Marketing Specialists Inc)
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect to which (a) The Seller is not a party to any of the following Contracts other than those terminable at the Seller's will without penalty, payment or impairment:
(i) Any contract with any present or former employee or consultant or for the employment of any person, including any consultant, who is engaged in the conduct of the Business;
(ii) Any contract for the future purchase of, or payment for, supplies or products, or for the performance of services by a third party which supplies, products or services are used in the conduct of the Business involving in any one case $25,000 or more;
(iii) Any contract to sell or supply products ("Goods Contracts") or to perform services other than customer transportation agreements ("Services Contract") in connection with the BusinessBusiness involving, includingin any one case, without limitation, any written $100,000.00 or oral:more;
(aiv) Any distribution, dealer, representative or sales agency Contract, relating to the Business;
(v) Any lease under which the Seller is either lessor or lessee relating to the Assets or any property at which the Assets are located;
(vi) Any Contract for any charitable or political contribution relating to the Business;
(vii) Any Contract for any capital expenditure or leasehold improvement in excess of $25,000;
(viii) Any Contract limiting or restraining the Seller, the Business or any successor thereto from engaging or competing in any manner or in any business, nor, to the Seller's knowledge, is any employee of the Seller engaged in the conduct of the Business subject to any such agreement, contract or commitment, contract, note, loan, evidence of indebtedness, purchase order ;
(ix) Any franchise or letter of credit involving any obligation or liability on the part of Seller with respect distributorship agreement; or
(x) Any Contract relating to the Business not otherwise listed on the Disclosure Schedule and continuing over a period of more than six months from the date hereof, or exceeding $5,000 100,000.00 in value.
(and not more xi) Any Service Contract other than $10,000 in the aggregate) form attached to the Disclosure Schedule with only such changes as are necessary to reflect applicable fees, time periods, and other changes therein as do not cancelable (without liability) on not more than 30 days' notice;naturally affect the rights or obligations of the Seller thereunder.
(b) lease of personal property with respect The Seller has made available to the Business involving any annual expense Purchaser complete and correct copies of all written contracts listed on Schedule 5.19, and a complete and correct description in excess all material respects of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description all of the leased itemsmaterial terms of all oral contracts listed on Schedule 5.19, termin each case together with a complete and correct copy or description in all material respects, annual rent and renewal options);as the case may be, of all amendments thereto.
(c) material governmental Each of the Contracts listed in the Disclosure Schedule in response to this Section, or regulatory licenses or permits not required to conduct be listed therein because of the Business as presently conducted;
(d) contracts amount thereof, and to which the Purchaser is to acquire rights or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contractsobligations hereunder, including without limitationis, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business Seller's knowledge, valid and enforceable in accordance with a gross value to its terms. The Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers is, and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting Seller's knowledge all other parties thereto are, in compliance with the Business under contracts not provisions thereof; the Seller is not, and to the Seller's knowledge, no other party thereto is, in default in the ordinary course performance, observance or fulfillment of businessany material obligation, covenant or condition contained therein; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best Seller's knowledge no event has occurred which with or without the giving of the Stockholder, no other party is) in breach notice or violation oflapse of time, or both, would constitute a default underthereunder. This Section 5.19 does not relate to agreements with respect to Intellectual Property, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited which are instead covered by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesSection 5.13.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 3.16 sets forth 4.11 hereto contains a complete list of each contract and commitment of the Seller that is material to the operations, assets, business or financial condition of the Seller or that by its terms can reasonably be expected to require future payment by or to the Seller of $1000.00 or more, including but not limited to the following:
(i) all Contracts presently in effect to which employment contracts and commitments between the Seller is a party in connection with and its employees, other than those terminable by the BusinessSeller at will and without payment or penalty;
(ii) all contracts or commitments, including, without limitation, any written or oral:
(a) commitment, contractwith distributors, notebrokers, loanmanufacturer’s representatives, evidence of indebtednesssales representatives, purchase order service or letter of credit involving any obligation warranty representatives, customers, and other persons, firms, or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 corporations engaged in the aggregate) and not cancelable (without liability) on not more than 30 days' noticesale or distribution of the Seller’s products;
(biii) lease of personal property with respect to all purchase orders issued by the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per 1000.00, all sales orders received by the Seller in excess of $1000.00 and all purchase or sales orders that call for delivery or performance on a date more than one year from the date of this Agreement;
(Schedule 3.16 sets forth iv) all contracts and arrangements between the Seller or any person or entity that controls, is controlled by, or is under common control with, the Seller or any family member of any such person (such entity or person, being hereinafter referred to as an “Affiliate”);
(v) all contracts with customers and suppliers currently in effect and for each such contract includes arrangements, written or oral, under which the Seller is either a notation as to whether (i) such customer ▇▇▇▇▇▇ or supplier has renewed such contract bailee including without limitation contracts for the period following bailment of vehicles;
(vi) all agreements pursuant to which the period covered thereby and (ii) such contract permits such customer Seller acquired the Trade Name or supplier to terminate such contract on 60 days' notice or less)a substantial portion of its assets; and
(gvii) all other contracts and commitments not otherwise described in of the Seller (excluding Business Leases for the purpose of this Section 3.16 4.11) and instruments reflecting obligations for borrowed money or for other indebtedness or guarantees thereof.
(b) At the Purchaser’s reasonable request, the Seller shall deliver or cause to be delivered to the Purchaser full and complete copies of the documents identified above and all such other agreements and instruments as the Purchaser may reasonably request.
(c) Each of the contracts listed on Schedule 3.16 (including purchase orders4.11 is valid and binding, franchise agreements and undertakings or commitments to except as otherwise provided in Schedule 4.11, neither the Seller nor any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) hereto is in default under or in breach or violation of, and neither the Seller nor any other party hereto has received notice of any asserted claim of default by any other party under, or default undera breach or violation of, any of the Contracts or other instrumentscontracts, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective termsagreements, and iscommitments listed in Schedule 4.11, including without limitation, any licensing or usage agreements with respect to the best knowledge of technology that the Seller now uses or currently intends and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating plans to or affecting creditors' rights generally and except as to the availability of equitable remediesuse.
Appears in 1 contract
Sources: Asset Purchase Agreement
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect to which Seller is a party in connection with the Business, including, without limitation, any written or oral:
(a) commitmentSection 2.19(a) of the Disclosure Schedule sets forth a complete and accurate list of all
(i) credit agreements, contractnotes, noteindentures, loansecurity agreements, evidence pledges, guarantees of indebtednessor agreements to assume any such debt obligation of others or similar documents relating to indebtedness for borrowed money (including interest rate or currency swaps, ▇▇▇▇▇▇ or straddles or similar transactions) to which the Companies are a party or by which any of its assets are bound, restricted or encumbered;
(ii) employment, consulting, severance or termination agreements which require or may require the Companies to pay (A) more than $100,000 in any twelve-month period, or (B) any severance or termination pay liability or obligation;
(iii) agreements by or among the shareholders of the Companies relating to or affecting the acquisition, disposition or voting of the capital stock of the Companies;
(b) Except as set forth in Section 2.19(b) of the Disclosure Schedule,
(i) the Companies do not have any contract which is material to its business, operations or prospects;
(ii) no purchase order or letter contract of credit involving any obligation or liability on either of the part of Seller with respect to the Business Companies continue for a period of more than $5,000 (and not twelve months or requires payment of more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeany twelve-month period;
(biii) lease of personal property with respect to the Business involving no Employee Benefit Plan contains any annual expense in excess of $5,000 and not cancelable without severance or termination pay liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)or obligation;
(civ) material governmental or regulatory licenses or permits required the Companies have no employee to conduct whom it is paying base salary at the Business as presently conductedannual rate of more than $100,000 for services rendered;
(dv) contracts or agreements containing covenants limiting the freedom of Seller to engage Companies are not restricted by any agreement from carrying on its business in any line of business or compete with any personrespect anywhere in the world;
(evi) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments Companies do not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments have any outstanding loan to any Governmental Entity) relating person, other than advances to the Business or otherwise affecting the Business under contracts not employees for travel and entertainment expenses in the ordinary course of business; it being understood that with and
(vii) the Companies do not have any power of attorney outstanding or any obligation or liability (whether absolute, accrued, contingent or otherwise), as surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholderobligation of any person, no other party is) in breach or violation ofcorporation, or default underpartnership, any of the Contracts joint venture, limited liability company, association, organization or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesentity.
Appears in 1 contract
Sources: Asset Purchase Agreement (Berliner Communications Inc)
Contracts and Commitments. (a) Section 4.15(a) of the Company Disclosure Schedule 3.16 sets forth all Contracts presently in effect to which Seller is a party in connection with material contracts of the Business, including, without limitation, any written or oral:Company and its Subsidiaries.
(ab) commitmentThere are no purchase contracts or commitments under which the Company or any of its Subsidiaries is required to pay in excess of $50,000 which continue for a period of more than 12 months or is in excess of the normal, contractordinary, noteand usual requirements of business or at any excessive price.
(c) There are no outstanding sales contracts, loancommitments, evidence or proposals of indebtedness, purchase order the Company or letter any of credit involving any obligation its Subsidiaries that call for the payment or liability on the part of Seller with respect to the Business receipt of more than $5,000 (and not 50,000 in a fiscal quarter which continue for a period of more than $10,000 12 months or which the Company believes will result in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense loss in excess of $5,000 10,000 to the Company and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon its Subsidiaries, taken as a general description of the leased items, term, annual rent and renewal options);
(c) material governmental whole upon completion or regulatory licenses or permits required to conduct the Business as presently conducted;performance thereof.
(d) Neither the Company nor any of its Subsidiaries has any outstanding contracts with officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors, or agreements containing covenants limiting dealers that are not cancellable by it on notice of not longer than 30 days and without liability, penalty, or premium or any agreement or arrangement providing for the freedom payment of Seller to engage in any line of business bonus or compete with any person;commission based on sales or earnings.
(e) employment contractsNeither the Company nor any of its Subsidiaries is in default, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (andnor, to the best knowledge of the StockholderCompany, no is there any basis for any valid claim of default under any material contract made or obligation owed by it.
(f) Neither the Company nor any of its Subsidiaries is restricted by contract from carrying on its business anywhere in the world.
(g) Neither the Company nor any of its Subsidiaries is under any material liability or obligation with respect to the return of inventory or merchandise in the possession of wholesalers, distributors, retailers or other party iscustomers.
(h) in breach Neither the Company nor any of its Subsidiaries has any obligation for borrowed money, including guarantees of or violation ofagreements to acquire any such obligation of others.
(i) Neither the Company nor any of its Subsidiaries has any outstanding loan to any Person other than to the Company or its Subsidiaries.
(j) Neither the Company nor any of its Subsidiaries has any power of attorney outstanding or any obligations or liabilities (whether absolute, accrued, contingent, or default underotherwise), any as guarantor, surety, co-signer, endorser, co-maker or indemnitor in respect of the Contracts or other instrumentsobligation of any Person.
(k) None of the officers, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and isdirectors or, to the best knowledge of Seller and the StockholderCompany, a legalshareholders of the Company has any interest in any property, valid and binding agreementreal or personal, arrangement tangible or commitment of each other party thereto enforceable against such other partiesintangible, except insofar as such enforceability may be limited by applicable bankruptcyincluding, insolvencywithout limitation, reorganizationthe Intellectual Property Rights, moratorium or similar laws relating to or affecting creditors' rights generally and except as that is material to the availability conduct of equitable remediesthe business of the Company and its Subsidiaries taken as a whole.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization and Merger (National Information Consortium)
Contracts and Commitments. Section 3.9 of the Disclosure Schedule 3.16 sets forth all Contracts presently in effect to which Seller is includes a party in connection with the Business, including, without limitation, any written or orallist of all:
(a) commitmentleases, contractagreements, notecontracts, loan, evidence of indebtedness, purchase order commitments or letter of credit involving any obligation or liability on the part restrictions of Seller with respect that relate to the IGC-Advanced Superconductor Division, IGC-Advanced Superconductor Division Assets or the Business that require payments in excess of more than $5,000 (and 100,000 per annum or, if payments are not more than required on a per month or per annum basis, $10,000 250,000 in the aggregate) aggregate and that are not cancelable (by Seller on notice of 90 days or less or without material liability) on not more than 30 days' notice, penalty or premium;
(b) lease sales, distribution or dealership contracts of personal property with respect Seller that relate to the IGC-Advanced Superconductor Division, IGC-Advanced Superconductor Division Assets or the Business involving any annual expense in excess and that are not cancelable by Seller on notice of 90 days or less or without liability, penalty or premium and which involve payments of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect 100,000 per annum or more in any such instance, or $250,000 in the aggregate as to each all such lease listed thereon a general description of the leased items, term, annual rent and renewal options)instances;
(c) material governmental written employment agreements or regulatory licenses other written agreements with employees of Seller that relate to the IGC-Advanced Superconductor Division, IGC-Advanced Superconductor Division Assets or permits required to conduct the Business as presently conductedthat are not cancelable at will, or that contain any severance or termination pay liabilities or obligations;
(d) collective bargaining or union contracts or agreements containing covenants limiting the freedom of Seller that relate to engage in any line of business or compete with any personthe IGC-Advanced Superconductor Division;
(e) employment contractsnon-competition or other similar restrictive agreements between Seller and any third party that restrict the IGC-Advanced Superconductor Division, including without limitation, contracts to employ executive officers and other contracts with officers IGC-Advanced Superconductor Division Assets or directors of Sellerthe Business;
(f) contracts with customers and suppliers debt obligations of Seller that are material to the IGC-Advanced Superconductor Division including, but not limited to, lease-purchase arrangements, guarantees, agreements to purchase goods or services (other than raw materials, operating supplies, and other inventory and property purchased in the ordinary course of Business) or to supply funds or make investments or other undertakings on which others rely in extending credit, conditional sales contracts, chattel mortgages, trust deeds, hypothecations, pledges, assignments of receivables, equipment lease agreements or other security arrangements with respect to personal or movable property having a value equivalent to, or providing for payments of, $100,000 per annum or more in any such instance, or $250,000 in the aggregate as to all such instances;
(g) leases, agreements, contracts and commitments between Seller or any of its Affiliates and the IGC-Advanced Superconductor Division, other than intercompany transactions in the Ordinary Course of Business with a gross value on customary intercompany terms and conditions;
(h) license agreements as to which Seller is either licensor or licensee that relate to the IGC-Advanced Superconductor Division including any payments required by Seller in excess of $2,000 100,000 per year annum;
(Schedule 3.16 sets forth i) material profit-sharing or joint venture agreements that relate to the IGC-Advanced Superconductor Division;
(j) material revocable or irrevocable powers of attorney or proxies granted to any person for any purpose whatsoever that relate to the IGC-Advanced Superconductor Division and that by their terms will survive the Closing other than powers and proxies given to customs and freight agents in the ordinary course;
(k) agreements involving any remaining or unsatisfied obligation of the IGC-Advanced Superconductor Division, IGC-Advanced Superconductor Division Assets or the Business (or the Seller with respect to any of the foregoing) to make capital expenditures (whether through the purchase of real or personal property or otherwise) involving $250,000 or more in the case of any one contract or offer, or $500,000 in the aggregate as to all such contracts with customers and suppliers currently or offers; or
(l) raw material purchase agreements or commitments for materials, supplies, component parts, or other items of inventory in effect and for each such contract includes a notation as to whether quantities which are (ix) such customer or supplier has renewed such contract for materially in excess of the estimated requirements of the IGC-Advanced Superconductor Division during the ninety (90) day period following the period covered thereby and Closing Date, or are at a price materially in excess of the current reasonable market price or (iiy) provide for payments of $100,000 per annum or more in any such contract permits instance, or $250,000 in the aggregate as to all such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) instances. The contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 clauses (including purchase orders, franchise agreements and undertakings or commitments a) through (l) are referred to any Governmental Entity) relating to as the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedies"Designated Contracts."
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth on Disclosure Schedule 3.16 sets forth all Contracts presently in effect to which Seller 3.12(a)(i)-(xvii) and Disclosure Schedule 3.14(c), neither the Company nor any Subsidiary is a current party in connection with to or otherwise currently obligated under any of the Businessfollowing, including, without limitation, any whether written or oral:
(ai) commitment, Any contract, agreement or purchase order providing for the sale of products or the provision of services (A) in excess of $20,000, in any such case, by the Company or any of the Subsidiaries to any other person or entity, (B) otherwise pursuant to which the Company or any of the Subsidiaries has accepted the terms and conditions of the other party thereto, (C) pursuant to which the Company or any of the Subsidiaries has agreed to indemnify or hold harmless the other party thereto for any actions of a Person other than the Company or any Subsidiary (other than those license agreements of the Company that contain indemnification provisions in substantially the form attached hereto as Exhibit 3.12(i)) or (D) pursuant to which the Company or one of the Subsidiaries has the right to setoff amounts owed to the Company or the Subsidiaries against amounts owed or claimed against another person or Affiliate of the Company;
(ii) Any single contract or purchase order obligating an expenditure by the Company or any Subsidiary in excess of $20,000 in a single year or any contracts or purchase orders with the same or Affiliated vendor(s) obligating an expenditure by the Company or any Subsidiary in excess of $20,000 in a single year.
(iii) Any contract providing for an expenditure by the Company or any Subsidiary for the purchase, lease or sale of any real property, except as disclosed in Schedule 3.9(c).
(iv) Any contract, bid or offer to sell products or to provide services to third parties which (i) any Seller or the Company knows or has reason to believe is at a price which would result in a net loss to the Company or any Subsidiary on the sale of such products or provision of such services, (ii) contains terms or conditions which any Seller or the Company cannot reasonably expect the Company or any Subsidiary to satisfy or fulfill in whole or in part, (iii) would permit such third party to seek or recover consequential damages, (iv) does not contain a cap on all damages or (v) provides for liquidated damages.
(v) Any purchase commitment for materials, supplies, component parts or other items or services in excess of the normal, ordinary, usual and current requirements of the Company or any Subsidiary or at a price in excess of the current reasonable market price at the time of such commitment.
(vi) Any contract pursuant to which the Company or any Subsidiary is the lessee or sublessee of, or holds or operates, any personal property owned or leased by any other Person or entity (other than leases of personal property leased in the Ordinary Course of Business with annual lease payments no greater than $20,000).
(vii) Any contract pursuant to which the Company or any Subsidiary is the lessor, sublessor or lessee of, or permits any third party to operate, any real or personal property owned or leased by any Seller or an officer, employee, shareholder or member of the Company or any Affiliate thereof.
(viii) Any revocable or irrevocable power of attorney granted to any person, firm, partnership or corporation for any purpose whatsoever, excluding the member of the Company designated as the “tax matters partner” and any such power of attorney granted to the Company’s outside accountant for tax matters.
(ix) Any loan agreement, indenture, promissory note, loanconditional sales agreement, evidence of indebtednessmortgage, purchase order or security agreement, pledge, letter of credit involving arrangement, guarantee, endorsement, assumption, indemnity, surety, foreign exchange contract, commodity contract, interest rate or other derivative contract, accommodation or other similar type of contract or agreement, and in any obligation event, including each instrument, contract or liability on agreement evidencing or relating to Indebtedness (together, in each applicable case, with the part outstanding principal balance thereof, accrued but unpaid interest thereon, prepayment penalties associated therewith and total payoff amount as of Seller with respect the payoff date specified thereon).
(x) Any contract pursuant to which the Business Company or any Subsidiary is obligated (i) to provide ongoing services or maintenance after the term of such contract or (ii) to provide services by any specific employee of the Company or any Subsidiary.
(xi) Any arrangement or other agreement which involves (i) a sharing of profits (other than the Incentive Plan Award Agreements entered into between the Company and the Phantom Unitholders), (ii) future payments of $20,000 or more than $5,000 per annum to other persons, or (and iii) any joint venture, partnership or similar contract or arrangement.
(xii) Any sales agency, sales representation, consulting, distributorship or franchise agreement that is not more than $10,000 terminable in 30 days or less without cost or penalty.
(xiii) Any contract (A) which may be terminated or (B) providing for the payment of any cash or other benefits, in either case, upon the sale or change of control of the Company or any Subsidiary or a substantial portion of any of its assets.
(xiv) Any contract prohibiting competition by the Company or any Subsidiary, or through grants of exclusivity or other exclusivity commitments, which restrict or prohibit the Company or any Subsidiary or their employees from freely engaging in any business anywhere in the aggregateworld.
(xv) and Any contract or commitment not made in the Ordinary Course of Business.
(xvi) Any contract pursuant to which the Company or any Subsidiary has acquired or disposed of or has agreed to acquire or dispose of any securities or any business or product line or the like.
(xvii) Any other contract or commitment which is not cancelable (without liability) penalty on not more than 30 days' notice;’ notice or less and which is not specifically described on any other Schedule to this Agreement.
(b) lease Attached as Disclosure Schedule 3.12(b) are the Company’s standard form of personal property with respect purchase orders relating to the Business involving any annual expense in excess sale and purchase of $5,000 goods, services, and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent both goods and renewal options);services.
(c) material governmental or regulatory licenses or permits required to conduct the Business Except as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contractsset forth on Disclosure Schedule 3.12(c), including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge none of the StockholderSellers or the Company or the Subsidiaries has received any notice of any intention to terminate, no other party is) in breach repudiate or violation of, or default under, disclaim any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesContract.
Appears in 1 contract
Contracts and Commitments. Except as set forth in Section 2.15 of the eMachines Disclosure Schedule 3.16 sets forth all Contracts presently in effect (with paragraph references corresponding to which Seller is a party in connection with the Business, including, without limitation, any written or oral:paragraphs below):
(a) commitmentSection 2.15(a) of the eMachines Disclosure Schedule lists all contracts, contractwritten or oral, notecommitments, loandocuments, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect instruments and agreements which are material to the Business business, operations or prospects of more than $5,000 eMachines and its Subsidiaries (collectively, the “Contracts”). eMachines has provided or made available to Gateway or Merger Sub a true, correct and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;complete copy of all such written Contracts including all amendments or supplements thereto.
(b) lease There are no purchase Contracts under which eMachines or any of personal property with respect its Subsidiaries is required to the Business involving any annual expense pay in excess of US $5,000 200,000 or which continue for a period of more than 12 months other than contracts for the purchase of goods for sale entered into in the ordinary course of business and not cancelable without liability within 30 days (Schedule 3.16 indicates consistent with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);past practices.
(c) material governmental Other than employment agreements and offer letters set forth in the eMachines Disclosure Schedule and indemnification agreements with directors and officers, neither eMachines nor any of its Subsidiaries has any outstanding Contracts with directors, officers, employees, agents, consultants, advisors, distributors, salesmen, sales representatives, dealers or regulatory licenses customers that are not cancelable by it on notice of not longer than 30 days and without liability, penalty or permits required to conduct premium, or any Contract providing for the Business as presently conducted;payment of any bonus or commission based on sales or earnings.
(d) contracts Neither eMachines nor any of its Subsidiaries has any employment contract or agreements containing covenants limiting the freedom of Seller any other contract that contains any severance or termination pay liabilities or obligations related to engage in any line of business or compete with any person;employment.
(e) employment contracts, including without limitation, contracts to employ executive officers eMachines and other contracts with officers its Subsidiaries are performing or directors have performed in all material respects all of Seller;their respective obligations under the Contracts scheduled in Section 2.15(a) of the eMachines Disclosure Schedule.
(f) contracts with customers and suppliers Section 2.15(f) of Seller with respect the eMachines Disclosure Schedule lists all Contracts to which eMachines or any of its Subsidiaries is a party that contain any exclusivity provision or other restriction on its activities in any such case which has had or would reasonably be expected to have a material adverse effect on the Business with a gross value to Seller business of eMachines, as currently conducted by eMachines, or in excess the sale of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); andconsumer electronic products.
(g) contracts and commitments not otherwise Other than any Contracts described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders2.15(f), franchise agreements and undertakings or commitments none of eMachines nor any of its Subsidiaries is a party to any Governmental EntityContract with another Person that contains obligations which, after the Closing, would have the effect of prohibiting Gateway or any of its Affiliates from competing with such Person or any of its Affiliates in any of the lines of business which eMachines currently conducts or proposes to conduct or in the sale of consumer electronics products.
(h) relating to the Business Other than guarantees by eMachines of obligations of its Subsidiaries, neither eMachines nor any of its Subsidiaries has any obligations or otherwise affecting the Business under contracts not liabilities (whether absolute, accrued or contingent), as guarantor, surety, co-signer, endorser (other than endorsements for collection), co-maker, indemnitor for third party obligations, other than in the ordinary course of business; it being understood that with , or otherwise in respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholderobligation of any Person, no corporation, partnership, joint venture, association, organization or other party isentity.
(i) Section 2.15(i) of the eMachines Disclosure Schedule lists all Indebtedness (as defined below) of eMachines and its Subsidiaries as of December 28, 2003. “Indebtedness” shall mean (i) all indebtedness for borrowed money or for the deferred purchase price of property or services (other than current trade liabilities incurred in breach the ordinary course of business and payable in accordance with customary practices), (ii) any other indebtedness that is evidenced by a note, bond, debenture or violation ofsimilar instrument, or default under(iii) all obligations under financing leases, and (iv) all guarantees of obligations of other Persons covered by any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesforegoing clauses.
Appears in 1 contract
Sources: Merger Agreement (Gateway Inc)
Contracts and Commitments. Schedule 3.16 sets (a) Except as set forth all on the attached Contracts presently in effect to which Seller Schedule, ------------------ neither the Company nor any Subsidiary as of the date of this Agreement is a party in connection with to or is bound to any of the Businessfollowing (each, including, without limitation, any written or oral:a "Material Contract"): -----------------
(ai) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit Contract involving any obligation or liability on the part of Seller with respect to the Business payments of more than $5,000 150,000 per year and relating to the borrowing of money or to placing a Lien on any of the assets, other than Permitted Liens;
(and not ii) license or royalty agreement involving expected payments of more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice150,000 per year;
(biii) lease Contract that would impose any geographic restrictions upon the ability of personal property with respect the Company and the Subsidiaries from freely engaging in their businesses anywhere in the world;
(iv) guaranty of any obligation of any Person (other than the Company or the Subsidiaries);
(v) Contract relating to the Business supply, manufacturing, distribution, marketing, advertising or promotion of products or services (whether by the Company or each Subsidiary or for the Company or each Subsidiary) involving in any annual expense such case payments of more than $250,000 per year (other than sales or purchases made pursuant to purchase orders in the ordinary course of business);
(vi) Contract relating to the pending acquisition or sale of a business, business unit or product line having a fair market value in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description 100,000 or for the Sale of the leased items, term, annual rent and renewal options);
assets of the Company or any Subsidiary (c) material governmental or regulatory licenses or permits required to conduct other than the Business as presently conducted;
(d) contracts or agreements containing covenants limiting sale of inventory in the freedom of Seller to engage in any line ordinary course of business or compete consistent with any person;
(epast practice) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller for consideration in excess of $2,000 100,000;
(vii) consulting agreement providing for payments thereunder in excess of $100,000 per year;
(viii) Contract under which a Person (other than the Company or any Subsidiary) is advanced or loaned an amount exceeding $100,000;
(ix) joint venture agreements, partnerships or similar Contracts providing for the sharing of profits, losses, costs or liabilities; any Contract relating to earn-outs, deferred payments or similar payments of more than $125,000 per year; any other Contract, other than Real Property Leases, which involve the expenditure of or receipt of more than $250,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently other than sales or purchases made pursuant to purchase orders in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or lessordinary course of business); and
(g) contracts and commitments any employment or consulting Contract with any Person that provides for annual compensation in excess of $100,000; Contracts with any Governmental Entity providing for payments in excess of $100,000 or not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been establishedor
(x) other than any Real Property Lease, any item within such category with employment agreement required to be made available to Buyer under Section 4.13, ------------ or any ordinary course purchase order from a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge customer of the StockholderBusiness, no other party isContract that cannot be terminated at will by the Company or any Subsidiary (A) in breach or violation of, or default under, any within 12 months of the Closing Date and (B) without incurring a termination fee or penalty of more than $100,000.
(b) Except as set forth on the attached Contracts or other instrumentsSchedule, obligations, evidences of indebtedness or commitments described ------------------ each Contract required to be disclosed on the attached Contracts Schedule is ------------------ in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in full force and effect and is the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreementobligation of the Company and/or any Subsidiary, arrangement or commitment of Seller enforceable against Seller it/them in accordance with its respective terms, and is, . Neither the Company nor any Subsidiary is in violation of or in default under (nor does there exist any condition which upon the passage of time or the giving of notice would cause such a violation of or default under) any Contract required to be disclosed on the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other partiesattached Contracts --------- Schedule, except insofar as such enforceability may set forth on the attached Contracts Schedule or except -------- ------------------ for violations or defaults that would not reasonably be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating expected to or affecting creditors' rights generally have a Material Adverse Effect.
(c) The Company has made available to Buyer true and except as to complete copies of all Contracts listed on the availability of equitable remedies.attached Contracts Schedule. ------------------
Appears in 1 contract
Contracts and Commitments. (a) Schedule 3.16 2.11 sets forth a complete and accurate list of all Contracts presently ------------- contracts which are known to the Seller after reasonable investigation and which were entered into by Seller and relating to the Practice and still in effect to which Seller is a party in connection with as of the Businessdate hereof (the "Contracts"), including, without limitation, any written or oralof the following categories:
(ai) commitment, contract, note, loan, evidence Managed care contracts and other contracts with third-party payors;
(ii) Employment or similar contracts and severance agreements;
(iii) Contracts (other than Leases set forth on Schedule 2.10) ------------- relating to the Assets of indebtedness, purchase order or letter of credit involving any obligation or the Practice which are not cancelable without liability on the part of Seller with respect to the Business of more than $5,000 thirty (and not more than $10,000 in the aggregate30) and not cancelable calendar days (without liabilityor less) on not more than 30 days' notice;
(biv) lease of personal property Options with respect to any property, real or personal related to the Business Practice, whether Seller is the grantor or grantee thereunder;
(v) Contracts involving any annual expense expenditures or liabilities, actual or potential, in excess of one thousand dollars ($5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect 1,000) or otherwise material to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)Practice or the Assets;
(cvi) material governmental Promissory notes, loans, agreements, indentures, evidences of indebtedness, letters of credit, guarantees, or regulatory licenses other instruments relating to an obligation to pay money, individually or permits required in the aggregate in excess of one thousand dollars ($1,000) and related to conduct the Business as presently conductedPractice, whether Seller shall be the borrower, lender or guarantor thereunder or whereby any Assets are pledged;
(dvii) contracts or agreements Contracts containing covenants limiting the freedom of Seller or an employee of Seller, to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(gviii) contracts Any Contract with the United States, state or local government or any agency or department thereof related to the Practice. Seller has made available to PQC and commitments not otherwise described in this Section 3.16 or Flagship true, correct and complete copies within Seller's possession of, and all records related to, all of the Contracts listed on Schedule 3.16 2.11, including to Seller's knowledge, all amendments and ------------- supplements thereto.
(including purchase ordersix) Absence of Breaches or Defaults. To the Seller's knowledge, franchise agreements ------------------------------- all of the Contracts are valid and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterialfull force and effect. Seller is not (andhas duly performed all of its obligations under the Contracts, to the best knowledge of the Stockholder, and no other party is) in breach or violation of, or default underor breach, under any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a by Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and isor, to the best knowledge of Seller and the StockholderSeller's knowledge, a legal, valid and binding agreement, arrangement or commitment of each any other party thereto enforceable against such has occurred except for any violations, defaults, or breaches that would not have a Material Adverse Effect and neither Seller nor any other partiesparty, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability best of equitable remediesSeller's knowledge after due inquiry, has repudiated any provisions thereof.
Appears in 1 contract
Sources: Asset Purchase Agreement (Physicians Quality Care Inc)
Contracts and Commitments. Schedule 3.16 sets forth EXCEPT for the Leases, Purchase Orders and Other Contracts, true and correct copies of which have been delivered by Seller to Buyer, Seller is not a party to or bound by, and will be a party to or bound by at the time of the Closing, with respect to the Food Courts or any of the other Acquired Assets, any written or oral (I) employment contracts, management or consulting agreements; or service agreements, (II) contracts with sales representatives, franchisees, agents, media providers, or other contracts affecting or regarding the marketing of the Food Courts; (III) contracts with any labor union or association or other employee group; (IV) leases with respect to any property, real or personal, whether as lessor or lessee; (V) patent, know-how, trademark, service ▇▇▇▇, copyrights, licenses or other contracts requiring the payment or providing for the receipt of any royalty; (VI) agreements creating a lien or other security interest in any personal property, tangible or intangible; (VII) contracts or commitments for capital expenditures in excess of $5,000.00, in the aggregate; (VIII) agreements creating or providing for long-term debt or continuing credit or any guarantee thereof; (IX) bonus, incentive compensation, stock option or stock purchase plans; (X) contracts continuing over a period of more than 30 days from its date; OR (XI) other material contracts, whether or not made in the ordinary course of business. Seller has in all material respects performed all obligations required to be performed by Seller to date under the Leases, Purchase Orders and Other Contracts presently and is not in effect default under any agreements, leases or other instruments or contracts to which Seller is a party or by which Seller is bound, nor to Seller's knowledge are there any outstanding disputes under any such agreements. Except for any required consents, neither the execution of this Agreement, nor the consummation of the transactions contemplated hereby, will result in connection with a breach or default, or result in the Business, including, without limitation, any written or oral:
(a) commitment, contract, note, loan, evidence acceleration of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, nor cause any of the Contracts termination, cancellation or other instrumentsloss of benefits under any such agreements, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract leases or other instrument, obligation, evidence of indebtedness instruments or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediescontracts.
Appears in 1 contract
Contracts and Commitments. Except as disclosed on Schedule 3.16 sets forth all Contracts presently in effect 2.25 to which Seller is a party in connection with the Business, including, without limitation, any written or oralDisclosure Schedule:
(a) commitmentParent is not nor is any Subsidiary, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business its business, a party to any oral or written contract:
(i) that prohibits Parent or any of more than $5,000 (and not more than $10,000 its Subsidiaries from freely engaging or competing in its line of business anywhere in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeworld;
(bii) lease that is not on arms-length terms;
(iii) pursuant to which Parent or any of personal property with respect its Subsidiaries has incurred or accrued losses;
(Iv) that commits Parent or any of its Subsidiaries to purchase or sell any properties or assets outside of the Business involving any annual expense ordinary course of business for consideration in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)100,000;
(cv) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default wouldinvolves an unfulfilled obligation, individually or in the aggregate, have in excess of $100,000 and is not terminable by Parent or any of its Subsidiaries upon less than 60 calendar days' notice for a Seller Material Adverse Effect. Each Contract cost of not less than $100,000;
(b) Since December 31, 1997, none of Parent's or any of its Subsidiaries' significant customers, suppliers, outside service providers or sources of referral has indicated that it will stop or materially decrease the rate of business done with or referred to either Parent or any such Subsidiary.
(c) To the Knowledge of Parent, neither Parent nor any of its Subsidiaries is obligated to (i) purchase any property or services at a price greater than the prevailing market price, (ii) sell any property or services at a price less than the prevailing market price, (iii) pay rentals or royalties at a rate greater than the prevailing market price or (iv) act as lessor or licensor at a rate less than the prevailing market price.
(d) The Company has been supplied with a true and correct copy of all written contracts which are referred to on Schedule 2.25, together with all amendments, exhibits, attachments, waivers or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedieschanges thereto.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect to which Seller is a party in connection with the Business, including, without limitation, any written or oral:
(a) commitmentThe Disclosure Schedule, contractunder the caption referencing this ss.3.13, notelists the following contracts, loancommitments and/or binding understandings, evidence whether oral or written, to which the Company or any Subsidiary is a party, which are currently in effect, and which relate to the operation of indebtednessthe Company or any Subsidiary's business (collectively, purchase order "Material Contracts"):
(i) all employment or consulting agreements (other than hourly employment arrangements), any employee benefit plan or a union or collective bargaining agreement;
(ii) all bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described under the caption referencing ss.3.17 in the Disclosure Schedule and other than discretionary bonuses for hourly employees;
(iii) all distributor, dealer, manufacturer's representative, sales agency or advertising agency contracts obligating the Company or a Subsidiary to make annual payments in excess of $25,000;
(iv) all contracts involving annual payments in excess of $25,000 terminable by the other party thereto upon a change of control of the Company or upon the failure of the Company to satisfy financial or performance criteria specified in such contract as provided therein;
(v) all leases of personal property involving annual payments in excess of $50,000 (to the extent not otherwise disclosed in the Disclosure Schedule under the caption referencing ss.3.10 hereof);
(vi) all contracts between or among the Company, any director, officer or employee thereof or any member of his or her family or any entity affiliated with any such person relating in any way to the Company (to the extent not otherwise disclosed in the Disclosure Schedule under the caption referencing ss.3.19 hereof);
(vii) all contracts, agreements or understandings relating to the voting of the Company Shares or the election of directors of the Company;
(viii) all contracts relating to the performance and payment of any surety bond or letter of credit involving amounts in excess of $25,000 required to be maintained by the Company or any Subsidiary;
(ix) all confidentiality or non-disclosure agreements material to the operations of the Company's or any Subsidiary's business;
(x) all stock purchase or stock option plans;
(xi) all agreements or indentures relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Security Interest in amount in excess of $25,000 on any of the assets of the Company or any Subsidiary;
(xii) all guaranties of any obligation of any Person (other than inter-company guaranties of the Leases) for borrowed money or liability on otherwise;
(xiii) all contracts or group of related contracts with the part same party for the purchase of Seller products or services under which the undelivered balance of such products or services is in excess of $50,000;
(xiv) all contracts or group of related contracts with respect to the Business same party continuing over a period of more than six months from the date or dates thereof and involving aggregate annual payments in excess of $5,000 (and 50,000, not more than $10,000 in terminable by the aggregate) and not cancelable (without liability) Company or any Subsidiary on not more than 30 days' noticeor less notice without penalty;
(xv) all contracts which prohibit the Company or any Subsidiary from freely engaging in business anywhere in the world;
(xvi) all license agreements or agreements providing for the payment or receipt of royalties or other compensation by the Company or any Subsidiary from or to any Person (other than inter-company payments of royalties) in connection with the intellectual property rights listed under the caption referencing ss.3.14 hereof in the Disclosure Schedule;
(xvii) all contracts or commitments for capital expenditures in excess of $25,000;
(xviii) all agreements for the sale of any capital asset involving an amount in excess of $25,000; and
(xix) any other agreement that is material to the business, financial condition or results of operation of the Company or any Subsidiary or was not entered into in the Ordinary Course of Business involving annual payments in excess of $50,000.
(b) lease Except as disclosed in the Disclosure Schedule under the caption referencing this Section 3.13(b) and as provided for in ss.7.01(m), the Company and its Subsidiaries have performed in all material respects all obligations required to be performed by them under the Material Contracts required to be disclosed in the Disclosure Schedule under the caption referencing this ss.3.13 and is not in receipt of personal property with respect any written claim of default under any Material Contract required to be disclosed under such caption. Except as disclosed in the Business involving Disclosure Schedule referencing this Section 3.13, the Company and its Subsidiaries have no present expectation or intention of not fully performing any annual expense in excess material obligation pursuant to any Material Contract required to be disclosed under such caption. The Company has no Knowledge of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect any material breach or anticipated material breach by any other party to each any Material Contract required to be disclosed under such lease listed thereon a general description of the leased items, term, annual rent and renewal options);caption.
(c) material governmental or regulatory licenses or permits required The Company will supply a true and correct copy of each written Material Contract and a written description of each oral Material Contract referred to conduct under the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in caption referencing this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity3.13(c) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that Disclosure Schedule, together with respect to each category listed above for which a dollar amount threshold has been establishedall amendments, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts waivers or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedieschanges thereto.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets Except as set forth all Contracts presently in effect Section 4.18(a) of the Expert Disclosure Letter, neither Expert nor any of the Expert Subsidiaries has, or is party to which Seller or is a party in connection with the Business, including, without limitation, any written or oralbound by:
(ai) commitmentany consulting or sales agreement, contract or commitment under which any firm or other organization provides services to Expert or any of the Expert Subsidiaries;
(ii) any fidelity or surety bond or completion bond;
(iii) any agreement of indemnification or guaranty;
(iv) any agreement, contract, notecommitment, loan, evidence transaction or series of indebtedness, purchase order or letter of credit involving transactions for any obligation or liability on the part of Seller with respect to the Business of more purpose other than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of Expert's or any of the Expert Subsidiaries' business relating to capital expenditures or commitments or long-term obligations in excess of $50,000;
(v) any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of Expert's or any of the Expert Subsidiaries' business; it being understood that ;
(vi) any mortgages, indentures, loans or credit agreements, security agreements or other arrangements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to in clause (iii) hereof;
(vii) any purchase order or contract for the purchase of inventory or other materials involving $50,000 or more;
(viii) any distribution, joint marketing or development agreement;
(ix) any assignment, license or other agreement with respect to each category listed above for which a dollar amount threshold has been establishedany form of intangible property; or
(x) any other agreement, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller contract or commitment that involves $50,000 or more or is not cancelable without penalty in excess of $50,000 within thirty (and, to the best knowledge of the Stockholder, no other party is30) in breach or violation of, or default underdays (collectively, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(gi) above, where such breach or violation or default would, through (x) above shall be known as "Contracts").
(a) Except as would not individually or in the aggregate, aggregate have a Seller an Expert Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, all such Contracts are valid and binding agreement, arrangement or commitment of Seller on Expert and are in full force and effect and enforceable against Seller Expert in accordance with their respective terms. Except as disclosed in Section 4.18(b) of the Expert Disclosure Letter, no approval or consent of, or notice to any Person the failure of which to obtain would have an Expert Material Adverse Effect is needed in order that such Contracts shall continue in full force and effect in accordance with its respective termsterms without penalty, and isacceleration or rights of early termination following the consummation of the transactions contemplated by this Agreement. Except to the extent any of the following would not individually or in the aggregate have an Expert Material Adverse Effect, Expert is not in violation of, breach of or default under any such Contract nor, to the best knowledge of Seller and the StockholderExpert's knowledge, a legal, valid and binding agreement, arrangement or commitment of each is any other party thereto enforceable against to any such other partiesContract. Except as set forth in Section 4.18 of the Expert Disclosure Letter, except insofar as Expert is not in violation or breach of or default under any such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws Contract (including leases of real property) relating to non-competition, indebtedness, guarantees of indebtedness of any other person, employment, or affecting creditors' rights generally and except as to the availability of equitable remediescollective bargaining.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 4.9 sets forth all Contracts presently in effect a true, complete and correct list and description of the following agreements, oral or written, relating to which the UPI Business, to which, as of the Closing Date, the Seller is a party or by which the Seller is bound (other than any such agreement that relates solely to an Excluded Asset): (a) all commitments, contracts, agreements, notes, loans, mortgages, indentures, pledges and other instruments involving an obligation on the part of the Seller of more than $10,000 individually or more than $25,000 in connection the aggregate, (b) all purchase orders and all agreements pursuant to which other Persons provide goods or services to the Seller, (c) all agreements with Clients under which the BusinessSeller may be obligated to perform services or expects to receive fees or other compensation, (d) all personal property leases involving annual payments in excess of $5,000 individually or more than $25,000 in the aggregate, (e) all employment contracts with employees of the Seller and all independent contractor agreements, (f) all guarantees of the obligations of any other Person, and (g) all other agreements (including, without limitation, all agreements restricting the ability of the Seller or any written other Person to compete or oral:
solicit clients) (the agreements identified in clauses (a) commitmentthrough (g) of this Section 4.9 being collectively referred to as the "UPI Related Contracts"). The Seller has delivered to the Buyer a true, contractcomplete and correct copy of each Purchased Contract. The Seller has not assigned, note, loan, evidence delegated or otherwise transferred any of indebtedness, purchase order its rights or letter of credit involving any obligation or liability on the part of Seller obligations with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description Purchased Contract or any Acquired Asset. The Purchased Contracts constitute all of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required UPI Related Contracts of the Seller which are necessary to conduct the UPI Business as presently conducted;
(d) contracts or agreements containing covenants limiting it is being conducted on the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesdate hereof.
Appears in 1 contract
Contracts and Commitments. Section 3.13 of the Disclosure Schedule 3.16 sets forth a list of all Contracts presently in effect of the following agreements, contracts and commitments to which Seller the Company or its Subsidiaries is a party in connection with or by which the BusinessCompany, includingits Subsidiaries or their respective assets are bound (each, without limitation, any written or oral:a “Material Contract”):
(a) commitmentemployment agreements or severance agreements or employee termination arrangements, contractin any such case, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business senior executive officers of more than the Company and employees earning a base salary in excess of $5,000 (and 100,000 per year, that are not more than $10,000 in terminable at will by the aggregate) and not cancelable (Company or its Subsidiaries without liability) on not more than 30 days' noticepenalty;
(b) lease any change of personal property control agreements with respect to employees of the Business involving any annual expense Company or its Subsidiaries earning a base salary in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)100,000 per year;
(c) material governmental agreements, contracts, commitments or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements arrangements containing covenants any covenant limiting the freedom ability of Seller the Company or its Subsidiaries to engage in any line of business or to compete with any personbusiness or Person;
(d) agreements or contracts with Seller or any officer, director or employee of Seller, the Company or its Subsidiaries that are not terminable at will by the Company or its Subsidiaries without penalty (other than Plans or employment, severance and change of control agreements covered by clause (a) or (b) above);
(e) employment contractsagreements or contracts under which the Company or any of its Subsidiaries has borrowed or loaned money, including without limitationor any note, contracts bond, indenture, mortgage, installment obligation or other evidence of indebtedness for borrowed or loaned money or any guarantee of such indebtedness, in each case, relating to employ executive officers and other contracts with officers or directors amounts in excess of Seller$250,000;
(f) contracts with customers leases pursuant to which personal or real property is leased to or from the Company or any of its Subsidiaries and suppliers under the terms of Seller which base rent (without regard to tax or other expense reimbursements) is payable in an amount in excess of $250,000 per year;
(g) guaranties, suretyships or other contingent agreements of the Company or its Subsidiaries involving underlying obligations of not less than $250,000;
(h) any agreement, contract, commitment or arrangement relating to capital expenditures with respect to the Business with a gross value to Seller Company or its Subsidiaries and involving future payments which exceed $500,000 in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether any 12-month period;
(i) such customer any agreement, contract, commitment or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) arrangement relating to the Business acquisition or otherwise affecting the Business under contracts not disposition of material assets (other than in the ordinary course of businessbusiness consistent with past practice) or any capital stock of any business enterprise;
(j) contracts with Governmental Authorities;
(k) partnership or joint venture agreements;
(l) any currency or interest rate swap, collar or hedge contract or agreement except as will terminate as of the Closing; it being understood that and
(m) contracts (other than those covered by clauses (a) through (l) above) pursuant to which the Company or its Subsidiaries will receive or pay in excess of $1,000,000 over any twelve-month period. As of the date hereof, with respect to each category listed above for which a dollar amount threshold has been establishedall Material Contracts, neither the Company, its Subsidiaries, nor, to the Company’s Knowledge, any item within other party to any such category with a value less than the dollar amount specified shall be deemed immaterial. Seller contract is not (in breach thereof or default thereunder and, to the best knowledge Company’s Knowledge, there does not exist under any event which, with the giving of notice or the Stockholderlapse of time, no other party is) in would constitute such a breach or violation ofdefault, except for such breaches, defaults and events as to which requisite waivers or default under, any of the Contracts consents have been obtained or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default wouldwhich would not, individually or in the aggregate, have result in a Seller Material Adverse Effect. The Company has made available to Buyer true and correct copies of all Material Contracts. Each Material Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreementon the Company or its Subsidiaries, arrangement or commitment of Seller as applicable, and, to the Company’s Knowledge, on the other parties thereto, in accordance with their respective terms, and is in full force and effect and enforceable against Seller the Company or the applicable Subsidiary in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of in each other party thereto enforceable against such other partiescase, except insofar as such enforceability may be limited by (a) applicable insolvency, bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' ’ rights generally and except as to the availability of equitable remediesor (b) applicable equity principles (whether considered in a proceeding at law or in equity).
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect to which Seller is a party in connection with the Business, including, without limitation, any written or oral:
(a) commitmentSection 4.8(a) of the Disclosure Schedule sets forth a complete list of each of the following written or oral Contracts (collectively, contractthe "MATERIAL CONTRACTS"):
(i) Mass-Market Contract creating any partnership, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeIndebtedness for Borrowed Money;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 Mass-Market Contract (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entitygovernmental or regulatory authority) relating to the Business or otherwise affecting the Business under contracts not made in the ordinary course of business; it being understood ;
(iii) Contracts of employment with Mass-Market Employees (including without limitation employment, change in control, golden parachute, severance or similar agreements or arrangements and other Mass-Market Contracts with Mass-Market Employees);
(iv) Mass-Market Contracts consisting of sales commitments for tobacco products;
(v) any other Mass-Market Contract involving payments by Seller in excess of $50,000 annually that with respect to each category listed above for which a dollar amount threshold has been establishedare not cancelable on 30-days' notice by Seller, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not without payment of penalty or premium;
(andvi) Mass-Market Contract relating to, to the best knowledge of the Stockholder, no other party is) in breach or violation evidences of, or default underguarantees of, or providing security for, Indebtedness for Borrowed Money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any Mass-Market Asset);
(vii) license, sale, distribution, commission, marketing, agent, franchise, technical assistance or similar contract relating to or providing for the marketing and/or sale of the Contracts products of the Mass-Market Cigar Business to which Seller is a party or other instrumentsby which Seller is bound;
(viii) Mass-Market Contract that requires the payment or incurrence of a Mass-Market Liability, obligations, evidences or the rendering of indebtedness services or commitments described in paragraphs the sale of goods by Seller subsequent to the date of this Agreement of more than $50,000;
(a)-(gix) above, where such breach Mass-Market Contract containing a covenant limiting the freedom of the Seller or violation or default would, individually or any Affiliate of the Seller to engage in the aggregateMass-Market Cigar Business or the transactions contemplated by the Ancillary Agreements or to compete with any Person (other than the Non-Compete Agreement); or
(x) Any other Mass-Market Contract required by applicable law to be filed by Seller with the U.S. Securities and Exchange Commission.
(b) Seller has furnished to Purchaser a copy of each of the Material Contracts, have a Seller and each such copy is correct and complete and includes all modifications thereof.
(c) All of the Material Adverse Effect. Each Contract or other instrument, obligation, evidence Contracts indicated with an asterisk ("*") on Section 4.8(a) of indebtedness or commitment described the Disclosure Schedule are in paragraphs (a)-(g) above is a full force and effect and constitute the legal, valid and binding agreement, arrangement or commitment obligations of Seller enforceable against Seller in accordance with its respective terms, and isand, to the best knowledge Knowledge of Seller and Seller, of the Stockholderother parties thereto (except, a legalin each case, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or insolvency and similar laws of general application relating to or affecting creditors' the enforcement of rights generally of creditors or the relief of debtors), and except as to the availability Knowledge of equitable remediesSeller, no condition exists or event, act or omission has occurred which, with or without notice, 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 consents of parties listed on Schedule 4.8(c) (the "REQUIRED CONSENTS"), no consent of any party to the Material Contracts is required to assign the Material Contracts, and Seller's rights and obligations thereunder, to Purchaser. No other party to any Material Contract has notified Seller of the assertion of its right to renegotiate the terms or conditions of any Material Contract, and, to the Knowledge of Seller, no such basis exists.
(d) For informational purposes, Seller has set forth in Section 4.8(d) of the Disclosure Schedule a list of Mass-Market Contracts in existence on the date hereof (i) which are not required to be set forth on Schedule 4.8(a) and (ii) with respect to which Seller makes no representation or warranty to Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (General Cigar Holdings Inc)
Contracts and Commitments. Except as set forth on Schedule 3.16 sets forth all Contracts presently in effect 2.1.18 hereto, as related to which Seller is a party in connection with the Business, Seller is not a party to, or bound by, any oral or written contracts, agreements, commitments or understandings:
(a) with any present or former officer or employee or consultant or for the employment of any person, including any consultant, who is engaged for in the conduct of the Business;
(b) with any dealer, representative, or service agreement contract or commitment, sales agency, manufacturer's representative, distributorship or marketing agreement or commitment relating to the Business;
(c) for leasing personal property (including, without limitation, leases for vending and other machinery and office equipment, furniture, fixtures, vehicles and tools) which require in any written case an annual payment in excess of Twenty-Five Thousand Dollars ($25,000) or oral:the term of any of which exceeds one (1) year and which is not cancelable on thirty (30) days' or less notice without penalty;
(ad) commitmentinvolving the payment or receipt in any case of in excess of Twenty-Five Thousand Dollars ($25,000) per annum by Seller and the term of any of which exceeds one (1) year (including, contractwithout limitation, notevendor, loan, evidence of indebtedness, purchase order supply and service contracts) and which is not cancelable on thirty (30) days' or letter of credit involving any obligation less notice without penalty;
(e) containing a covenant not to compete or liability on the part of confidentiality agreement by Seller with respect to the Business of more than $5,000 (and not more than $10,000 or which restricts Seller from engaging in the aggregate) and Business, which restriction would affect Buyer's ability to operate the Business or to Seller's Knowledge, is any employee at Seller engaged in the conduct of the Business subject to any covenants not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to compete, confidentiality agreement or other agreement which in any case restricts such employee's ability to perform his obligations to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of SellerBusiness;
(f) contracts with customers and suppliers involving capital expenditures or the acquisition of Seller with respect to the Business with a gross value to Seller in excess fixed assets which require or will require aggregate payments of more than One Hundred Thousand Dollars ($2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less100,000); and;
(g) contracts other than as included within the Assumed Contracts, involving a note, debenture, bond, equipment trust agreement, mortgage, indenture, security agreement, letter of credit agreement, loan agreement or other contract or commitment for the borrowing or lending of money specifically relating to the Business, or agreement or arrangement for a line of credit or guarantee, pledge, or undertaking of the indebtedness of any other person specifically relating to the Business;
(h) providing for the services of agents, consultants, advisors, advertisers, dealers, distributors, sales representatives or similar representatives involving in any case the payment or receipt of in excess of Twenty-Five Thousand Dollars ($25,000) per annum by the Business and commitments not immediately terminable by Seller at will and without cost or liability to the Business (exclusive of accrued but unpaid salaries, commissions and other benefits);
(i) involving any license, franchise, distributorship or other agreement which relates in whole or in part to any of the Acquired Assets not otherwise described disclosed in this Section 3.16 the Schedules hereto;
(j) partnership, joint venture or listed other arrangements or agreements involving a sharing of profits or expenses involving the Business;
(k) Intentionally Omitted;
(l) relating to product or service warranties outside the Ordinary Course of Business (as hereinafter defined) of the Business;
(m) directly or indirectly between Seller, on Schedule 3.16 (including purchase ordersthe one hand, franchise agreements and undertakings any of its shareholders, directors, officers and their Affiliates, on the other hand, regarding the leasing or commitments licensing of properties or assets, royalty payments, the providing of services to any Governmental Entity) or by Seller relating to the Business or otherwise affecting any loan or other financial or business relationship relating to the Business under contracts not other than the provision of accounting, legal, corporate, technology support and other services by Seller's corporate offices to the Business in the ordinary course Ordinary Course of business; it being understood that with respect Business;
(n) Intentionally Omitted;
(o) which otherwise is material to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller Business and not made in the Ordinary Course of Business and is not (and, to the best knowledge of the Stockholder, no other party is) otherwise disclosed in breach or violation of, or default under, any of the Contracts Schedules hereto; and
(p) involving any charitable or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, political contribution relating to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesBusiness.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets Except as set forth all Contracts presently in effect on Schedules 1.7 or 5.16 to which Seller the Disclosure Schedule, the Company is not a party in connection with the Businessto, includingor bound or affected by any contract, without limitationlease, any agreement, covenant, license, instrument or commitment (whether written or oral) of any type, including the following:
(a) commitmentcontracts for the employment or compensation of any officer or individual employee, contractnot terminable without further liability at any time:
(b) contracts with any labor union;
(c) continuing contracts for the future purchase of materials, notesupplies or equipment, loanat a cost of $10,000 or more, evidence or to be delivered more than ninety (90) days after the date hereof;
(d) continuing contracts for the future provision of indebtednessits services;
(e) distribution or agency contracts, purchase order franchise contracts, or letter of credit involving any obligation or advertising commitments, which cannot be terminated without further liability on the part of Seller with respect to the Business of Company upon no more than $5,000 thirty (and not more than $10,000 in the aggregate30) and not cancelable (without liability) on not more than 30 days' notice;
(bf) lease of personal property pension, profit sharing, deferred compensation, retirement or stock option or stock purchase plans in effect with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased itemsofficers, term, annual rent and renewal options)employees or others;
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) leases under which it is lessor or lessee;
(h) underwriting agreements or agreements with a broker or finder;
(i) consulting agreements;
(j) contracts for the acquisition of a business, or substantially all of the property, assets, or stock of a business under which there are any continuing or unperformed obligations on the part of any of the parties thereto; or
(k) Any other contract, agreement, or commitment involving $10,000 or more or which is not terminable without further liability to the Company upon no more than thirty (30) days' notice. There have been delivered to Buyer true and commitments not otherwise described correct copies of each of the Contracts listed in this Section 3.16 or the Disclosure Schedule. Except as set forth on Schedule 5.16 to the Disclosure Schedule, all of the Contracts listed on Schedule 3.16 (including purchase orders5.16 are valid, franchise agreements binding and undertakings in full force and effect and are enforceable in accordance with their terms against all other parties to such Contracts and are assignable to Buyer; provided, however, neither the Company nor the Member makes any representation or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that warranty with respect to each category listed above for which a dollar amount threshold has been established, whether any item within such category with a value less than the dollar amount specified or all Medicare licenses or provider numbers or approvals can be assumed by Buyer or Renex. Buyer and Renex shall be deemed immaterialresponsible for seeking any such assignments or approvals (or issuances of new numbers where required) and the Company and Member shall cooperate and execute such documents as are reasonably required. Seller The Company has performed all material obligations required to be performed by it to date and is not (and, in default in any material respect under any Contract to which it is a party. To the best knowledge of the Stockholder, Company and the Member no other party is) to any such Contract is in breach or violation ofdefault with the terms thereof. Except as set forth on Schedule 5.16 to the Disclosure Schedule, or default under, any none of the Contracts listed on Schedule 5.16 were arrived at, or other instrumentsotherwise reflect, obligations, evidences of indebtedness less than arms length negotiations or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesbargaining.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth in Schedule 3.16 sets forth all Contracts presently 5.9 hereto, to the Knowledge of Parent, neither the Corporation nor any Subsidiary of the Corporation has any agreements, contracts, arrangements or commitments, written or oral, which (i) either individually or in effect to which Seller is a conjunction with other agree- ments, contracts, arrangements or commitments with the same party and in connection with the Businesssame matter involve or relate to the payment or receipt by the Corporation or any Subsidiary of the Corporation of an aggregate of Ten Thousand and 00/100 Dollars ($10,000.00) or more over the term of the contract or will not be totally performed by all parties thereto within ninety (90) days from the date hereof; (ii) provide for the payment of any bonus or commission based on sales or earnings, includingor are with Parent or any officer, director, consultant, agent or Affiliate of Parent or the Corporation or any Subsidiary of the Corporation, or relate to employment (other than employment arrangements terminable at will, without limitation, any written or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect the Corporation or any Sub- sidiary); (iii) relate to the Business of more than $5,000 non-competition (and the Corporation and its Subsidiaries are not more than $10,000 otherwise restricted by any agreement or other commitment from carrying on its business as currently conducted or selling goods of any sort anywhere in the aggregateworld); or (iv) and not cancelable (without liability) on not more than 30 days' notice;constitute powers of attorney or obligations or liabilities as guarantor, surety, or indemnitor in respect of the obligation of any other Person. -18-
(b) lease of personal property with respect to the Business involving any annual expense Except as set forth in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and5.9 hereto, to the best knowledge Knowledge of Parent, neither the Corporation nor any Subsidiary of the Stockholder, no other party is) Corporation is in breach or violation ofdefault under any Material Contract, there exists no event or condition which (whether with or without notice, lapse of time or both) would constitute a default underthereunder, any of the and all Material Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, are valid and binding agreementin full force and effect and will not cease to be valid and in full force and effect after the Closing. To the Knowledge of Parent, arrangement or commitment accurate and complete copies of Seller enforceable against Seller in accordance with its respective termsall Material Contracts, including all amendments thereto, and is, accurate and complete summaries of all oral Material Contracts have previously been heretofore delivered to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesPurchaser.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 3.16 sets forth 3.11(a) attached hereto contains an accurate and complete list of all Contracts presently in effect related to the Subject Business and meeting any of the descriptions set forth below to which Seller or any Subsidiary is a party in connection with or bound or by which any of the BusinessPurchased Assets are subject or bound, includingor pursuant to which Seller or any Subsidiary is a beneficiary (the “Purchased Contracts”):
(i) Contracts obligating Seller to pay, without limitationas guarantor or otherwise, any written indebtedness or oral:in any way creating any Lien on any of the Purchased Assets;
(aii) commitmentLicenses In, contractLicenses Out or royalty Contracts;
(iii) Management, noteconsulting or advisory Contracts;
(iv) Contracts for the purchase or sale of supplies or products or for the furnishing or receipt of services which has a minimum duration of one year or more or involves a sum in excess of $25,000, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect in each case to the Business extent any such Contract is not terminable by Seller without the payment of any fee or other amount on no more than $5,000 thirty (and not more than $10,000 in the aggregate30) and not cancelable (without liability) on not more than 30 days' days notice;
(bv) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants Contracts limiting the freedom of Seller Seller, or that would limit the freedom of Buyer after the Closing Date, to freely engage in any line of business or compete with any personPerson anywhere in the world;
(evi) employment contractsContracts relating to the distribution, marketing, advertising or sales of the Software Products, including without limitation, contracts to employ executive officers and other contracts Contracts with officers sales representatives or directors of Selleragents;
(fvii) contracts with customers and suppliers Contracts pursuant to which Seller subcontracts work to third-parties;
(viii) power of Seller with respect attorney;
(ix) Contracts relating to the acquisition or sale of any portion of the Subject Business or the Software Products;
(x) any employment Contract or severance agreement with a gross value to Seller any Hired Employee;
(xi) any Service Contract with an aggregate amount payable in excess of $2,000 per year 10,000;
(xii) the Real Estate Lease; or
(xiii) other Contracts material to the Subject Business.
(b) Seller has made available to Buyer complete and correct copies of each Purchased Contract, together with all amendments, waivers and other changes thereto, and a complete and correct description of all material terms of all oral Purchased Contracts. No Purchased Contract has been canceled or, to Seller’s Knowledge, breached by the other party, and Seller has no Knowledge of any planned breach by any other party to any Purchased Contract. Since December 31, 2008, to Seller’s Knowledge, except as set forth on Schedule 3.16 sets forth 3.11(b), no customer, supplier or distributor of the Subject Business has indicated in writing or orally to Seller that it intends to stop or materially decrease the rate of business done with Seller or that it desires to renegotiate its Contract with Seller or that it would not do business with Buyer. Seller has performed all such contracts obligations required to be performed by it in connection with customers the Purchased Contracts and suppliers currently is not in effect default under or in breach of any Purchased Contract, and for each such contract includes a notation as to whether (i) such customer no event or supplier condition has renewed such contract for occurred or arisen which with the period following passage of time or the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' giving of notice or less); and
(g) contracts and commitments not otherwise described both would result in this Section 3.16 a default or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effectthereunder. Each Purchased Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreementvalid, arrangement or commitment of Seller binding, enforceable against Seller in accordance with its respective terms, and is, subject to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or and similar laws of general applicability relating to or affecting creditors' ’ rights generally and except to general principles of equity and in full force and effect and, subject to Section 2.12, will continue as such following the consummation of the transactions contemplated hereby.
(c) All Software Products have been sold pursuant to Seller’s standard End User License Agreement in the form attached to Schedule 3.11(c), with no material modification to the availability terms thereof, including terms relating to Seller’s right to assign such End User License Agreement.
(d) To Seller’s Knowledge, there is no reason to believe that Buyer will be unable (i) to obtain, on monetary terms consistent with those currently in effect with Seller, a written maintenance agreement with any customer of equitable remediesthe Subject Business who is not currently a party to a written Service Contract, and (ii) to the extent necessary, to obtain, without the payment or provision by Buyer of any sums or inducements, written consents to any transfer of the customer relationship as contemplated hereby.
(e) Schedule 3.11(e) sets forth a complete and correct list of each Purchased Contract that requires a consent or other action by any Person as a result of the execution, delivery and performance of this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Bio Key International Inc)
Contracts and Commitments. Schedule 3.16 sets Except as set forth all Contracts presently in effect SCHEDULE 3.17, with respect to, related to which Seller is a party in connection with or arising from the BusinessPurchased Assets, including, without limitation, any written the Terminal or oralSeller's business operations at the Terminal:
(a) commitmentSeller does not have any agreements, contractcontracts, notecommitments, loanor restrictions that are material to its businesses, evidence prospects, financial condition, working capital, assets, liabilities (absolute, accrued, contingent or otherwise), reserves or operations or that require the making of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticecharitable contribution;
(b) lease of personal property with respect There are no purchase contracts or commitments under which Seller is required to the Business involving any annual expense pay in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon 10,000, which continue for a general description period of more than 12 months or which are in excess of the leased itemsnormal, termordinary, annual rent and renewal options)usual requirements of business or at any excessive price;
(c) material governmental There are no outstanding sales contracts, commitments or regulatory licenses proposals of Seller that call for the receipt of more than $10,000, that continue for a period of more than 12 months, or permits required that Seller believes will result in any loss in excess of $10,000 to conduct the Business as presently conductedSeller upon completion or performance thereof;
(d) Seller does not have any outstanding contracts with officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors or agreements containing covenants limiting dealers that are not cancelable by it on notice of not longer than 30 days and without liability, penalty, or premium or any agreement or arrangement providing for the freedom payment of Seller to engage in any line of business bonus or compete with any personcommission based on sales or earnings;
(e) employment contractsSeller is not in default, including without limitationnor is there any basis for any valid claim of default, contracts to employ executive officers and other contracts with officers under any material contract made or directors of Sellerobligation owed by it;
(f) contracts with customers and suppliers of Seller is not restricted by agreement from carrying on its business anywhere in the world;
(g) Seller is not under any material liability or obligation with respect to the Business with a gross value to Seller return of inventory or merchandise in excess the possession of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer wholesalers, distributors, retailers or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); andother customers;
(gh) contracts and commitments not otherwise described Except as set forth in this Section 3.16 SCHEDULE 3.17, none of the officers, directors or listed on Schedule 3.16 (shareholders of Seller has any interest in any property, real or personal, tangible or intangible, including purchase orderswithout limitation the Intellectual Property, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not that is used in the ordinary course business of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesSeller.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect (a) Neither the Company nor any of its Subsidiaries is party to which Seller is a party in connection with the Business, including, without limitation, any written or oralany:
(ai) commitmentContract with any current or former director, contractofficer, noteemployee, loanconsultant or agent providing for (A) severance, evidence of indebtednesschange-in-control or retention benefits, purchase order or letter of credit involving any obligation or liability on (B) except as provided in the part of Seller agreements with respect to the Business Restricted Stock, the increase or acceleration of more than $5,000 benefits payable as a result of the Merger (and not more than $10,000 in or any termination of employment following the aggregateMerger), or (C) and not cancelable (without liability) on not more than 30 days' noticethe indemnification of any such party;
(bii) lease of personal property with respect Contract to the Business involving forgive any annual expense indebtedness in excess of $5,000 and not cancelable without liability within 30 days 250,000 of any Person to the Company or any of its Subsidiaries;
(Schedule 3.16 indicates with respect to each such lease listed thereon iii) Contract regarding the purchase of real property;
(iv) loan agreement, promissory note, debenture, credit or financing agreement, instrument or other Contract evidencing indebtedness for borrowed money;
(v) Contract providing security for indebtedness or the deferred purchase price of assets (other than any asset or group of related assets having a general description purchase price of the leased items, term, annual rent and renewal optionsless than $250,000);
(cvi) material governmental Contract to guarantee the obligations of, or regulatory licenses to indemnify, any third party (other than (A) indemnification of customers, distributors, resellers, agents, suppliers, licensors or permits required to conduct licensees in the Business as presently conductedordinary course of business and (B) indemnification obligations set forth in the Certificate of Incorporation or By-Laws of the Company, the organizational documents of its Subsidiaries or in any written indemnification agreement with directors, officers and agents of the Company or its Subsidiaries);
(dvii) contracts Contract which restricts the ability of the Company or agreements containing covenants limiting the freedom of Seller its Subsidiaries to (A) engage in any business activity in any geographic area or line of business, which prohibits the Company or its Subsidiaries from competing with, or soliciting the services or employment of, any Person or (B) develop, use, sell or license any IP which otherwise prohibits or Materially impairs any current business practice of the Company or compete with any personits Subsidiaries;
(eviii) employment contractsOther than the Saxon IP License and the Saxon Divestiture Agreements, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract Contract for the period following sale or other disposition of any assets of the period covered thereby and (ii) such contract permits such customer Company or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase ordersits Subsidiaries, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not other than in the ordinary course of business; it being understood that with respect ;
(ix) Contract creating any partnership or joint venture;
(x) Contract obligating the Company or its Subsidiaries to each category listed above for make aggregate payments in excess of $500,000 to any third party which a dollar amount threshold has been established, is not terminable by the Company or such Subsidiaries without any item within such category with a value less liability upon 30 days' notice or less;
(xi) Other than the dollar amount specified shall Saxon IP License and the Saxon Divestiture Agreements, Contract pursuant to which the Company or its Subsidiaries reasonably expect to receive aggregate payments in excess of $500,000;
(xii) Contract containing any change of control, consent or other similar provisions that may be deemed immaterialor are triggered or otherwise affected by any of the transactions contemplated by this Agreement;
(xiii) Contract relating to any Legal Proceeding or any Order;
(xiv) Contract that contains an obligation of confidentiality on the part of the Company or its Subsidiaries other than non-disclosure agreements entered into in the ordinary course of business;
(xv) any other Material agreement or commitment.
(b) The Company has made available to Purchaser a correct and complete copy of each Material Contract (including all amendments thereto) and a summary description of any oral or unwritten Material Contract. Seller is not (andEach Material Contract is, to the best knowledge Knowledge of the StockholderCompany, in full force and effect and enforceable against the other party or parties thereto in accordance with its terms, subject to the Enforceability Limitations. Neither the Company nor any of its Subsidiaries is in Material breach of or default under any Material Contract, nor has there occurred any event that with the passage of time or the giving of notice or both would constitute a Material breach or default by the Company or its Subsidiaries under any Material Contract. The Company has not received any notice that the Company or any of its Subsidiaries is in Material breach of or default under any Material Contract. To the Knowledge of the Company, no other party is) to any Material Contract is in Material breach or violation of, of or default underunder any Material Contract, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and isnor, to the best knowledge Knowledge of Seller and the StockholderCompany, has there occurred any event that with the passage of time or the giving of notice or both would constitute such a legal, valid and binding agreement, arrangement breach or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesdefault.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets Except as set forth all Contracts presently in effect to which Seller Section 4.25 of the NeoStem Disclosure Statement, as described in a NeoStem SEC Report or as set forth as an exhibit in a NeoStem SEC Report, neither NeoStem nor any of its Subsidiaries is a party to any existing contract, obligation or commitment of any type in connection with any of the Business, including, without limitation, any written or oralfollowing categories:
(a) commitment4.25.1 contracts for the purchase by NeoStem or any of its Subsidiaries of medicines, contractmaterials, note, loan, evidence of indebtedness, purchase order supplies or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and equipment which are not cancelable (without liability) on not more than 30 upon 90 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 ’ or less notice and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether which either (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments have not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not been entered into in the ordinary course of business; it being understood that business and consistent with past practice or (ii) provide for purchase prices substantially greater than those presently prevailing for such materials, supplies or equipment, or (iii) contracts obligating NeoStem or its Subsidiaries to make capital expenditures in excess of $50,000;
4.25.2 contracts under which NeoStem or any of its Subsidiaries has, except by way of endorsement of negotiable instruments for collection in the ordinary course of business and consistent with past practice, become absolutely or contingently or otherwise liable for (i) the performance of any other person, firm or corporation under a contract, or (ii) the whole or any part of the indebtedness or liabilities of any other person, firm or corporation;
4.25.3 powers of attorney outstanding from NeoStem or any of its Subsidiaries other than as issued in the ordinary course of business and consistent with past practice with respect to each category listed above customs, insurance, patent, trademark or tax matters, or to agents for service of process;
4.25.4 contracts under which any amount payable by NeoStem or any of its Subsidiaries is dependent upon, or calculated in accordance with, the revenues or earnings (or any component thereof of NeoStem or any of its Subsidiaries;
4.25.5 contracts with any director, officer, employee or affiliate of NeoStem or any of its Subsidiaries other than in such person’s capacity as a dollar amount threshold has been establisheddirector, officer or employee of NeoStem or any of its Subsidiaries;
4.25.6 contracts which limit or restrict where NeoStem or any of its Subsidiaries may conduct its business or the type or line of business in which NeoStem or any of its Subsidiaries may engage;
4.25.7 contracts with any party for the loan of money or availability of credit to or from NeoStem or any of its Subsidiaries (except credit extended by NeoStem or any of its Subsidiaries to its customers in the ordinary course of business and consistent with past practice);
4.25.8 any material hedging, option, derivative or other similar transaction; or
4.25.9 any contract with any Governmental Authority or, to NeoStem's knowledge, any item within such category Government Authority contractor, with a value less than regard to any product or service sold or provided by NeoStem. True and complete copies of all contracts, obligations and commitments listed in Section 4.25 of the dollar amount specified shall be deemed immaterialNeoStem Disclosure Statement have been delivered or made available to CBH. Seller Except as set forth in Section 4.25 of the NeoStem Disclosure Statement, none of NeoStem or its Subsidiaries or, to the knowledge of NeoStem, any other party is not in breach of or default under any of the contracts, obligations and commitments listed in Section 4.25 of the NeoStem Disclosure Statement or under any other NeoStem Contracts (and, to the best knowledge of the StockholderNeoStem, no other party is) in breach facts or violation of, or default under, circumstances exist which could reasonably support the assertion of any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default woulddefault) except for breaches and defaults which would not, individually singly or in the aggregateaggregate with all other such breaches, have a Seller NeoStem Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedies.
Appears in 1 contract
Sources: Merger Agreement (NeoStem, Inc.)
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently 1.01A contains an accurate and complete list of each contract, agreement or commitment relating to the Assets of the Seller or its Affiliates not otherwise listed in effect to which Seller is a party in connection with the Business, including, without limitation, any written Schedule 1.01D or oralSchedule 5.05:
(a) commitmentto which the Seller or its Affiliates are a party and which requires total payments to or by the Seller of at least Two Hundred Fifty Thousand Dollars ($250,000) annually (other than spot crude contracts, contractspot product contracts, notetransportation contracts, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect and crude supply contracts not fully dedicated to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeRefinery);
(b) lease to which the Seller or its Affiliates are a party which has a remaining term longer than one (1) year, which requires total payments by the Seller of personal property with respect to the Business involving any annual expense in excess of at least Two Hundred Fifty Thousand Dollars ($5,000 250,000) during such term and which is not cancelable terminable on thirty (30) or fewer days' notice without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)penalty;
(c) material governmental to which the Seller or regulatory licenses its Affiliates are a party relating to indebtedness for borrowed money, including capital leases, security agreements relating thereto and any amendment or permits required to conduct the Business as presently conductedwaiver thereof;
(d) contracts to provide capital or agreements containing covenants limiting funds by way of a loan or guaranty of a loan or any other form of guaranty, assurance, funding agreement or other arrangement intended to assure the freedom payment or performance of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with obligation by a gross value to Seller third party in excess of Two Hundred Fifty Thousand Dollars ($2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less250,000); and
(ge) contracts and commitments not otherwise described in this Section 3.16 involving any rights to throughput, process, refine feedstocks or listed on Schedule 3.16 products at or from the Refinery; (including purchase orderscollectively items (a) through (e), franchise other than contracts, agreements and undertakings or commitments to of the Seller or any Governmental Entity) relating Affiliate of Seller which have expired or have terminated at or prior to the Business or otherwise affecting Effective Time in accordance with the Business under contracts not procedures set forth in Section 10.01, the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect"Commitments"). Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above Commitment is a legal, valid and binding agreementobligation of the Seller, arrangement or commitment of Seller its Affiliates enforceable against the Seller or its Affiliates in accordance with its respective terms, and is, to except as the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and except general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Except as to specified in Schedule 1.01A, the availability Seller or its Affiliates are not, nor is any other party thereto, in default under any of equitable remediesthe Commitments where such defaults would result, in the aggregate, in a Material Adverse Effect. Except as specified in Schedule 1.01A since the date of this Agreement, the Seller or its Affiliates have not received written notice of cancellation or termination of any Commitment from any party thereto.
Appears in 1 contract
Contracts and Commitments. (a) Schedule 3.16 sets 7.19 hereto (with paragraph references corresponding to those set forth below) contains a true and complete list of each of the following contracts (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all Contracts presently in effect amendments and supplements thereto, have been delivered or made available to STH), to which Seller HHTI or any of the HHTI Subsidiaries is a party in connection with the Business, including, without limitation, or by which any written or oralHHTI Hotel is bound:
(ai) commitment, contract, note, loan, evidence all contracts providing for the leasing or management of indebtedness, purchase order one or letter more of credit involving the HHTI Hotels or any obligation portion of one or liability on more of the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeHHTI Hotels;
(bii) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)all HHTI Franchise Agreements;
(ciii) all material governmental contracts providing for a commitment of employment or regulatory licenses consultation services for a specified or permits required to conduct the Business as presently conductedunspecified term;
(div) all contracts with any person containing any provision or agreements containing covenants covenant prohibiting or materially limiting the freedom ability of Seller HHTI or any of the HHTI Subsidiaries to engage in any line of business activity, hire employees, solicit customers or otherwise compete with any person;
(ev) employment contractsall partnership, including without limitationjoint venture, contracts to employ executive officers and stockholders' or other similar contracts with officers or directors of Sellerany person;
(fvi) all notes, debentures, bonds and other evidence of HHTI Indebtedness;
(vii) all contracts with customers relating to any business combination;
(viii) all contracts between or among HHTI or any of the HHTI Subsidiaries, on the one hand, and suppliers any of Seller with respect their stockholders or affiliates, on the other hand;
(ix) all collective bargaining or similar labor contracts; and
(x) all other contracts that involve the annual payment or potential annual payment pursuant to the Business with a gross value terms of such contract, by or to Seller HHTI or any of the HHTI Subsidiaries of more than $25,000 or aggregate payments in excess of $2,000 per year 100,000 that will not (A) be fully performed on or prior to the Effective Time, (B) expire by their terms prior to the Effective Time, or (C) be cancelable by the Surviving Entity, without penalty, upon not more than 30 days notice, including, without limitation, all leases, contracts for purchase and sale of assets, advance booking contracts and banquet contracts.
(b) Each contract required to be disclosed on Schedule 3.16 sets forth all such contracts with customers 7.19 is in full force and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is constitutes a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective termsterms and, and isexcept as disclosed on Schedule 7.19, neither HHTI, any of the HHTI Subsidiaries nor, to the best knowledge of Seller and the StockholderHHTI, a legal, valid and binding agreement, arrangement or commitment of each any other party thereto enforceable against to such other partiescontract is in violation, except insofar as breach or default under any such enforceability may contract (or with notice or lapse of time or both would be limited by applicable bankruptcyin violation, insolvencybreach or default under any such contract), reorganizationthe effect of which, moratorium individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect.
(c) The HHTI Franchise Agreements disclosed on Schedule 7.19 constitute all of the franchise or similar laws relating agreements necessary to operate and manage the HHTI Hotels and neither HHTI nor any HHTI Subsidiary has received any notice or affecting creditors' rights generally and except as to the availability has any knowledge of equitable remediesan event of default or termination or proposed termination under any such HHTI Franchise Agreement.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets (a) Except as set forth all in SCHEDULE 2.19 ("Contracts presently in effect and Commitments"), the Sellers and each Acquired Company have provided or made available to Buyer a complete, accurate list of, or made available to Buyer copies of each of the following (each a "Company Commitment") to which Seller an Acquired Company is a party or by which any of its properties is bound and which presently remains executory in connection with the Business, including, without limitation, any written whole or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether part: (i) such customer each partnership or supplier has renewed such contract for the period following the period covered thereby and joint venture agreement; (ii) such each guaranty or suretyship, indemnification or contribution agreement or performance bond (other than any Guaranty limited as to recourse to no more than Five Thousand Dollars ($5,000) and any Guaranty of any automobile or other vehicle retail installment sales contract permits such customer or supplier entered into and sold to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not a financial institution in the ordinary course of business); it being understood that (iii) each instrument, agreement or other obligation evidencing or relating to indebtedness of an Acquired Company involving more than Twenty-Five Thousand Dollars ($25,000) in any single case, or to money lent or to be lent to another Person involving more than One Hundred Thousand Dollars ($100,000) in the aggregate, other than any of its dealership customers in connection with the purchase, or the refinancing of the purchase, of any vehicle; (iv) each contract to purchase or sell real property; (v) each agreement with brokers of motor vehicles or sales or commission agents, public relations or advertising agencies, accountants or attorneys (other than in connection with this Agreement and the transactions contemplated hereby) involving total payments within any twelve (12) month period in excess of Ten Thousand Dollars ($10,000) and which is not terminable without penalty and no more than thirty (30) days' prior notice; (vi) each Related Party Agreement involving total payments within any twelve (12) month period in excess of Ten Thousand Dollars ($10,000) and which is not terminable without penalty on no more than thirty (30) days' prior notice; (vii) each contract containing any noncompetition agreement, covenant or undertaking; (viii) each dealer sales and service agreement to which an Acquired Company is a party and each other agreement providing for the purchase from a supplier of all or substantially all the requirements of an Acquired Company of a particular product or service; or (ix) each other agreement or commitment not made in the ordinary course of business which is material to the Acquired Companies.
(b) True, correct and complete copies of all written Company Commitments have heretofore been delivered or made available to Buyer. Except as accurately set forth in SCHEDULE 2.19: (i) there are no existing or asserted defaults, events of default or events, occurrences, acts or omissions that, with the giving of notice or lapse of time or both, would constitute defaults or events of default under any Company Commitment material to the Acquired Companies by an Acquired Company or, to the Knowledge of each Seller or Acquired Company, any other party thereto; and (ii) no penalties have been incurred, nor are amendments pending, with respect to each category listed above for which a dollar amount threshold has been establishedthe Company Commitments that are material to the Acquired Companies. All Company Commitments are in full force and effect and are valid and enforceable obligations of the Acquired Company, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge Knowledge of each Seller and Acquired Company, the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller parties thereto in accordance with its their respective termsterms and no defenses, and isoff-sets or counterclaims have been asserted or, to the best knowledge Knowledge of Seller and the StockholderAcquired Companies, may be made by any party thereto (other than by an Acquired Company), nor has an Acquired Company waived any rights thereunder, except as described in SCHEDULE 2.19.
(c) Except as disclosed in SCHEDULE 2.19 or contemplated hereby or by any other Transaction Document to which an Acquired Company or Stockholder is a legalparty, valid and binding agreement, arrangement none of the Acquired Companies or commitment Sellers has received notice of each any plan or intention of any other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as any Company Commitment that is material to the availability Acquired Companies to exercise any right to cancel or terminate that Company Commitment, and neither the Acquired Companies nor Sellers has Knowledge of equitable remediesany condition or state of facts which would justify the exercise of such a right.
Appears in 1 contract
Contracts and Commitments. (a) Except for contracts, commitments, plans, agreements, arrangements, understandings and licenses described in Schedule 3.16 sets forth all Contracts presently in effect to which Seller 2.16(a) hereto (the “Material Contracts”), neither the Company nor any of its Subsidiaries is a party to or subject to any Contract (excluding purchase orders entered into in connection with the Business, including, without limitation, any written or oral:ordinary course of business):
(ai) commitmentfor the purchase of any commodity, contractmaterial, noteequipment or asset (except for purchase orders in the ordinary course of business, loanconsistent with past practice, evidence or contracts involving payments of indebtedness, purchase order less than $50,000 each);
(ii) creating any obligations of the Company or letter any of credit involving any obligation or liability on its Subsidiaries after the part of Seller with respect to the Business Base Balance Sheet Date which call for payments of more than $5,000 (and not 15,000 during any month for agreements without a fixed term or more than $10,000 in 50,000 over the aggregate) and not cancelable (without liability) on not more than 30 days' noticeterm of the agreement for agreements with a fixed term;
(biii) lease providing for the purchase of personal property with respect to the Business involving any annual expense in excess all or substantially all of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon its requirements of a general description of the leased items, term, annual rent and renewal options)particular product from a supplier;
(civ) material governmental which by its terms does not terminate or regulatory licenses is not terminable without premium or permits required to conduct penalty by the Business Company or any of its Subsidiaries, as presently conductedapplicable (or their respective successors or assigns) upon notice of ninety (90) days or less;
(dv) contracts for the sale or agreements lease of its products not made in the ordinary course of business;
(vi) with any sales agent or distributor of products of the Company or any of its Subsidiaries;
(vii) containing covenants limiting the freedom of Seller the Company or any of its Subsidiaries to engage compete in any line of business or compete with any personperson or entity;
(eviii) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers for a license or directors of Sellerfranchise (as licensor or licensee or franchisor or franchisee);
(fix) contracts with customers and suppliers of Seller involving any arrangement or obligation with respect to the Business return of inventory or merchandise other than on account of a defect in condition, or failure to conform to the applicable contract;
(x) with a gross value to Seller in excess of $2,000 per year the United States government;
(Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation xi) which contains covenants as to whether (i) such customer noncompetition or supplier has renewed such contract nonsolicitation restricting or for the period following benefit of the period covered thereby and Company or any of its Subsidiaries; or (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not excluding Contracts entered into in the ordinary course of businessbusiness consistent with past practices) which contains covenants as to nondisclosure or confidentiality restricting or for the benefit of the Company or its Subsidiaries; it being understood that with respect or
(xii) which is material to the assets or business of the Company or any of its Subsidiaries.
(b) Each of the contracts, commitments, plans, agreements and licenses to which the Company or any of its Subsidiaries is a party or to which the Company or any of its Subsidiaries is subject (whether written or oral), including those listed on Schedule 2.16(a) (each category listed above for which a dollar amount threshold has been established“Contract”) is valid, any item within such category with a value less than binding and enforceable against the dollar amount specified shall be deemed immaterial. Seller is not (Company and its Subsidiaries, as applicable, and, to the best knowledge Knowledge of the StockholderCompany, no against the other party isparties thereto; the Company and its Subsidiaries, as applicable, is in material compliance with all terms and conditions of each Contract; and neither the Company nor any of its Subsidiaries has given or received notice of any alleged violation of or default under any such Contract.
(c) Except as set forth on Schedule 2.16(c), since January 1, 2007, neither the Company nor any of its Subsidiaries have experienced any termination, cancellation, limitation or modification or material and adverse change in breach any business relationship with any material supplier or violation material customer, nor has the Company or any of its Subsidiaries received notice or otherwise have Knowledge that any material customer or material supplier intends to cease, or materially reduce or change the terms of, doing business with the Company or default under, any of its Subsidiaries or to terminate any agreement with the Contracts Company or other instruments, obligations, evidences any of indebtedness or commitments described in paragraphs (a)-(g) aboveits Subsidiaries, where any such breach or violation or default wouldaction, individually or in the aggregate, has had or would have a Seller Material Adverse Effect. Each Contract Schedule 2.16(c) lists every material customer or supplier of the Company and each of its Subsidiaries and the amount of business with that customer. For purposes hereof, (i) a supplier is material if during fiscal 2005, 2006 or 2007, it accounted for more than five percent (5%) by value of the orders of the Company and its Subsidiaries, taken as a whole, for purchase of all their raw materials and other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective termsproducts essential to their manufacturing processes for such year, and is(ii) a customer is material if it accounted for more than three percent (3%) by value of the orders of the Company and its Subsidiaries, to taken as a whole, in either fiscal 2005, 2006 or 2007.
(d) All of the best knowledge Company’s sales and purchase commitments were made in the ordinary course of Seller and the Stockholderbusiness, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesconsistent with past practices.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets Except as set forth all Contracts presently in effect Section 5.11 of the Disclosure Schedule, neither Dourave nor the Subsidiary is party to which Seller is a party in connection with the Business, including, without limitation, any written or oral:
(a) commitment, contract, noteagreement, loan, evidence commitment or personal property lease which requires Dourave or the Subsidiary to make payments thereunder in excess of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice2,000;
(b) lease note, loan or evidence of personal property with respect to indebtedness on the Business involving any annual expense in excess part of Dourave or the Subsidiary of more than $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)2,000;
(c) material governmental contracts, agreements or regulatory licenses commitments not otherwise described in (a) or permits required to conduct (b) above which are not in the Business as presently conductedordinary course of Dourave’s or the Subsidiary’s business or which materially affect Dourave’s or the Subsidiary’s business;
(d) contracts guarantee of any Liability or obligation;
(e) contracts, agreements or commitments containing covenants limiting the freedom of Seller Dourave or the Subsidiary to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of SellerPerson;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer employment of any officer, individual, employee or supplier other person or entity on a full-time, part-time, consulting or other basis, or other agreement providing severance benefits or relating to terminate such contract on 60 days' notice loans to officers, directors, employees or less); andAffiliates;
(g) contracts partnership or joint venture agreements;
(h) contracts, agreements or commitments which have an unexpired term in excess of twelve (12) months from the date hereof, other than those which can be terminated on not more than thirty (30) days notice without Liability to Dourave, the Subsidiary or Buyer;
(i) contract or agreement which is incapable of being fulfilled or performed on time without undue or unusual expenditure of time, money or effort;
(j) contract or agreement which provides for any payment or receipt of funds not accurately reflecting the value on an arm’s length basis of the services or goods in consideration of which that payment or receipt of funds has been made or is to be made; or STG_319977.13
(k) contract or agreement which involves or is likely to involve obligations, restrictions or liabilities whose nature or magnitude ought reasonably to be known by an intending purchaser of Dourave and commitments not otherwise its business. None of Dourave, the Subsidiary nor any other party thereto is in default (nor does any circumstance exist which, with notice or the lapse of time or both, would result in such a default) under any agreement, contract, lease or commitment described in this Section 3.16 or listed on Schedule 3.16 5.11 to which it is a party (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial“Material Contracts”). Seller is not (and, to the best knowledge Each of the StockholderMaterial Contracts is in full force and effect, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller and is enforceable against Seller Dourave, the Subsidiary and each other party thereto in accordance with its respective terms, subject to general principles of equity and is, laws of general application relating to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' ’ rights generally generally, regardless of whether considered in a proceeding in equity or at law. The Sellers have delivered or made available to Buyer true and except as correct copies of the Material Contracts. Copies of each personal property lease have been provided or made available to Buyer and Section 5.11 of the availability Disclosure Schedule sets forth a list of equitable remediessuch leases. Each personal property lease listed in Section 5.11 of the Disclosure Schedule includes a description of the leased property, the monthly rent, the term of the lease and any options to purchase the leased property.
Appears in 1 contract
Sources: Stock Purchase Agreement (Bullion Monarch Mining, Inc. (NEW))
Contracts and Commitments. Schedule 3.16 sets forth (a) The “Contracts Schedule” attached hereto lists all Contracts presently in effect of the following written agreements to which Seller any member of the Company Group is a party and which are currently in connection with the Business, including, without limitation, any written or oraleffect:
(ai) commitmentContracts which involve commitments to make capital expenditures or which provide for the purchase of materials, contractsupplies, notegoods or services by any member of the Company Group from any one Person under which the undelivered balance of such products or services has a purchase price in excess of $250,000;
(ii) master agreements, loanmaintenance agreements, evidence license subscription agreements, license agreements, or substantially similar Contracts with any of indebtednessthe Company Group’s top 10 customers for each of (i) fiscal year 2013 (measured by annual recurring revenue, purchase order services and license fees) and (ii) the period beginning on January 1, 2014 and ending on the date of the Stub Period Balance Sheet (measured by annual contract value for recurring revenue as of July 31, 2014);
(iii) Contracts relating to Indebtedness of any member of the Company Group or letter any guaranty by any member of credit involving the Company Group of any obligation in respect of borrowed money;
(iv) material Contracts with dealers, distributors or liability sales representatives;
(v) employment, consulting and non-competition agreements with any employee, officer or consultant whose base annual compensation is equal to or greater than $150,000;
(vi) all employment-related Contracts pursuant to which payments by any member of the Company Group will be required by reason of the consummation of the transactions contemplated in this Agreement whether alone or in conjunction with a termination of employment;
(vii) Contracts pursuant to which any member of the Company Group is a lessor or a lessee of any property, personal or real, or holds or operates any tangible personal property owned by another Person, except for any leases of personal property under which the aggregate annual rent or lease payments do not exceed $250,000;
(viii) any agreement relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise);
(ix) any partnership or joint venture agreement or arrangement;
(x) any Contract that (i) materially limits the freedom of any member of the Company Group to compete in the Business as currently conducted on the part date hereof or which would so limit the freedom of any member of the Company Group after the Closing Date or (ii) contains a “most favored nation” provision; or
(xi) all agreements of any member of the Company Group with (A) any Seller or any of its Affiliates, (B) any Person directly or indirectly owning, controlling or holding with respect power to vote any outstanding voting securities of any Seller or any of its Affiliates, (C) any Person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by any Seller or any of its Affiliates or (D) any director or officer of any Seller or any of its Affiliates or any “associates” or members of the Business “immediate family” (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of more than $5,000 (and not more than $10,000 in the aggregateSecurities Exchange Act of 1934, as amended) and not cancelable (without liability) on not more than 30 days' notice;of any such director or officer.
(b) lease of personal property with respect to Except as disclosed on the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether attached “Contracts Schedule,” (i) such customer no Contract set forth on the attached “Contracts Schedule” has been breached in any material respect or supplier canceled by any member of the Company Group or, to the Company’s Knowledge, the other party, which has renewed such contract for the period following the period covered thereby and not been duly cured or reinstated, (ii) to the Company’s Knowledge, no event has occurred on or prior to the date hereof that (with or without notice, lapse of time or both) would constitute a material default by any member of the Company Group under any such contract permits Contract, (iii) no member of the Company Group is in receipt of any written claim of default under any such customer or supplier to terminate such contract on 60 days' notice or less); and
Contract which remains unresolved, and (giv) contracts and commitments not otherwise described in this Section 3.16 or each Contract listed on Schedule 3.16 (including purchase ordersthe attached “Contracts Schedule” is in full force and effect, franchise agreements and undertakings is valid, binding and enforceable against the Company or commitments to any Governmental Entity) relating to one or more members of the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been establishedCompany Group, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (as applicable, and, to the best knowledge of Company’s Knowledge, is enforceable against the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other partiesthereto, except insofar as such enforceability may be limited by (A) applicable insolvency, bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' ’ rights generally and except as (B) applicable equitable principles (whether considered in a proceeding at law or in equity). True, correct and complete copies of each Contract listed on the attached “Contracts Schedule” have been made available to the availability of equitable remediesPurchaser.
Appears in 1 contract
Sources: Purchase Agreement (Blackbaud Inc)
Contracts and Commitments. Schedule 3.16 sets Except for such matters set forth in SCHEDULE 3.1.24, SCHEDULE 3.1.15 describes all Contracts presently in effect of the following commitments relating to the Business and to which Seller is a party party, together with a statement as to whether such is included among or excluded from the Assets (the "Commitments") (when used in connection with this SECTION 3.1.15, references to Seller shall mean only as related to the Business):
(a) real or personal property leases under which Seller is either lessor or lessee relating to the Assets or any property at which the Assets are located;
(b) license agreements, assignments, contracts (whether as licensor or licensee, assignor or assignee) relating to trademarks, trade names, patents or copyrights (or applications therefor), unpatented designs or processes, formulae, know-how or technical assistance, or other proprietary rights;
(c) agreements and other arrangements for the sale of goods or services by the Seller to any government, governmental, quasi- governmental or regulatory authority;
(d) agreement, contract or commitment to sell, supply, purchase or receive goods ("Goods Contracts") or to perform services ("Services Contracts") involving in any one case $ 1,000 or more other than those described in (c) above;
(e) agreements with any labor union or other collective bargaining agreement;.
(f) agreements with distributors, dealers, sales agents or representatives which may not be terminated by the Seller without liability unless not more than 30 days' notice is given;
(g) material agreements with manufacturers, suppliers of customers with respect to discounts and allowances and extended payment terms;
(h) joint venture or partnership agreements with any other person;
(i) agreements guaranteeing, indemnifying or otherwise becoming liable for the obligations or liabilities of another;
(j) agreements (other than purchase money security interests which may, under the terms of invoices from suppliers of the Seller, be granted to such suppliers with respect to goods so purchased) for the borrowing or lending of money;
(k) agreements with any bank, finance company or similar organization;
(1) agreements granting any person a power of attorney, lien, security interest or mortgage on any of the Assets (except purchase money security interests created under customers' purchase orders and securing only the amounts owed for the goods so purchased), including, without limitation, any written or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts factoring agreements or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer assignment of Accounts Receivable or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedies.Inventory;
Appears in 1 contract
Contracts and Commitments. (a) A complete and accurate list of all of the following contracts and agreements (whether written or oral) of the Companies (such contracts and agreements, the contracts and agreements as set forth in Section 4.13(b) of the Disclosure Schedule 3.16 sets and all agreements relating to Intellectual Property set forth all Contracts presently in effect Section 4.12 of the Disclosure Schedule being "Material Contracts") shall be delivered by Seller to Buyer on or before December 15, 1995 and shall constitute Section 4.13(a) of the Disclosure Schedule:
(i) agreements providing for royalty obligations relating to any of the Products which has generated at least $250,000 in revenue within the Companies' last three fiscal years or which is reasonably anticipated to generate revenue of at least $250,000 in fiscal year 1995 or fiscal year 1996;
(ii) agreements providing for advances made with respect to or on account of the Products which remain outstanding and which have not been written off;
(iii) (A) editorial development agreements relating to the Products which have involved or are reasonably anticipated to involve commitments of over $50,000 and which have not been fully performed and (B) distributor, dealer or manufacturer's representative contracts or agreements relating to the Products which are currently offered for sale by either of the Companies (to the extent the obligations under such agreements are not reflected on the Disclosure Schedule lists provided pursuant to Section 4.13(a)(i) and (ii));
(iv) distributor, dealer or manufacturer's representative contracts or agreements which are not terminable on less than 90 days notice without cost or other liability to the Company or Companies party thereto (except for contracts which, in the aggregate, are not material to the NewMedia Busi- ness);
(v) sales contracts which entitle any customer to a rebate or right of set-off, to return any product to either of the Companies after acceptance thereof or to delay the acceptance thereof;
(vi) contracts or other commitments with any supplier containing any provision permitting any party other than the Company or Companies party thereto to renegotiate the price or other terms, or containing any pay-back or other similar provision, upon the occurrence of a failure by that Company to meet its obligations under the contract when due or the occurrence of any other event;
(vii) credit agreements, notes, indentures, security agreements, pledges, guarantees of or agreements to acquire any such debt obligation of others or similar documents relating to indebtedness for borrowed money (including without limitation interest rate or currency swaps, ▇▇▇▇▇▇ or straddles or similar transactions) to which Seller either of the Companies is a party or by which any of their respective assets are bound, restricted or encumbered;
(viii) all employment, consulting, severance or termination agreements which require or may require either of the Companies to pay more than $50,000 in connection base salary in the case of employment contracts in any 12-month period;
(ix) agreement, or group of related agreements with the Businesssame party or any group of affiliated parties, includingrequiring payments in excess of $50,000 per year, without limitationunder which either of the Companies has leased or has agreed to lease any property as lessee or lessor;
(x) all deeds, title documents, title reports or similar documents related to any written real property owned by either of the Companies; and
(xi) all contracts, agreements, arrangements or oralunderstandings with Seller or any affiliate or associate (as such terms are defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended) of Seller, together with a description of the nature of any applicable affiliate or associate relationship.
(b) Except as set forth in Section 4.13(b) of the Disclosure Schedule, which shall be delivered by Seller to Buyer on or before December 15, 1995:
(ai) commitment, contract, note, loan, evidence no supply or purchase contract of indebtedness, purchase order either of the Companies (or letter group of credit involving any obligation related contracts with the same party): (A) continues for a period of more than six months (including renewals or liability on extensions at the part option of Seller with respect to another party); (B) requires payment by the Business Company or Companies party thereto of more than $5,000 50,000 in any 12-month period; or (and C) is not more than $10,000 in terminable by the aggregate) and not cancelable (Company or Companies party thereto without liability) on not more than 30 days' notice;
(b) lease penalty upon notice of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days or less (Schedule 3.16 indicates excluding any contract or group of contracts with respect to each such lease listed thereon a general description customer of either of the leased itemsCompanies for the sale, termlease, annual rent and renewal options);
(c) material governmental license or regulatory licenses or permits required to conduct rental of Products of either of the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each Companies if such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) group of contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not was entered into in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not NewMedia Business);
(and, to the best knowledge ii) neither of the Stockholder, no other party is) in breach or violation of, or default under, Companies has any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment understanding with respect to payment of Seller enforceable against Seller (A) minimum royalty or license fees or (B) fees, costs and expenses in accordance connection with "work for hire" which, in the case of any such agreement, arrangement or understanding or group of related agreements, arrangements or understandings, provide for payments in excess of $150,000;
(iii) neither of the Companies has any outstanding contract with respect to the employment of any officer, individual, employee, agent, consultant, adviser, salesperson, representative or other person (whether of a legally binding nature or in the nature of informal understandings) on a full-time, part-time, contract or consulting basis which is not terminable by the Company or Companies party thereto on notice of 30 days or less without cost or other liability to the Company or Companies party thereto, including without limitation any penalty or premium or provision for the payment of any bonus or commission based on sales or earnings;
(iv) neither of the Companies has any pension, profit-sharing, bonus, severance pay, retirement, hospitalization, insurance, stock purchase, stock option or other benefit plan, arrangement, understanding or agreement with or for the benefit of any Person (a "Benefit Plan") or any other employment or consulting agreement that contains any severance or termination pay, liability or obligation;
(v) neither of the Companies has any Benefit Plan other than group insurance plans applicable to employees generally;
(vi) neither of the Companies has any employee to whom it is paying base salary at an annual rate of more than $100,000 for services rendered;
(vii) neither of the Companies is restricted by any agreement from carrying on the NewMedia Business in any material respect anywhere in the world (other than by geographic or use restrictions contained in licenses relating to Intellectual Property);
(viii) neither of the Companies has any outstanding loan to any Person, other than travel advances to employees for travel and entertainment expenses in the ordinary course of the NewMedia Business;
(ix) neither of the Companies has any power of attorney outstanding (except those granted in the ordinary course of the NewMedia Business) or any obligation or liability (whether absolute, accrued, contingent or otherwise), as surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the obligation of any Person;
(x) there exists no voting trust, stockholders' agreement, pledge agreement or buy-sell agreement relating to any securities of either of the Companies which is or will be in effect as of the Closing;
(xi) neither of the Companies has any agreement or obligation (contingent or otherwise) to issue or sell or to repurchase or otherwise acquire or retire any shares of its respective termscapital stock or any of its other equity securities; and
(xii) neither of the Companies has any other contract which is material to its business, operations or prospects or any other contract, instrument, commitment, plan or arrangement, a copy of which would be required to be filed with the SEC as an exhibit to a registration statement on Form S-1, if that Company were registering securities under the Securities Act.
(c) The Material Contracts constitute all contracts, agreements and arrangements necessary for the conduct of the NewMedia Business in substantially the same manner as it is presently conducted. Each Material Contract is, to the best knowledge of Seller and the Stockholder, a legalSeller, valid and binding agreement, arrangement or commitment of each on the other party or parties thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable (subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights and remedies generally and except as general principles of equity) and is in full force and effect and shall continue in full force and effect without penalty or other adverse consequence. Neither of the Companies nor, to the availability best knowledge of equitable remediesSeller, any other party to any Material Contract is in breach of, or default under, any Material Contract, which breach or default has or could reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Tribune Co)
Contracts and Commitments. (a) Schedule 3.16 3.10(a) sets forth all of the following Contracts presently in effect to which Seller is the Company or its Subsidiaries are a party in connection with the Business(each, including, without limitation, any written or oral:a “Material Contract”):
(ai) commitmentemployment, contractretention, noteseverance or other agreement with any current or former officer, loan, evidence of indebtedness, purchase order individual employee or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any other individual providing for annual expense payments in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)100,000;
(cii) material governmental or regulatory licenses or permits required Contracts relating to conduct the Business as presently conductedIndebtedness;
(diii) contracts lease or agreements agreement under which it is the lessee of, or holds or operates any tangible personal property owned by, any other Person, for which the annual rental exceeds $500,000;
(iv) Contract, or group of related Contracts with the same party (other than purchase orders entered into in the ordinary course of business consistent with past practice), which by its terms requires payments to or by the Company or any of its Subsidiaries in excess of $500,000 annually or in excess of $1,000,000 over the remaining term of such Contract;
(v) Contract containing covenants limiting the freedom ability of Seller the Company or any of its Subsidiaries to engage compete in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts other than arrangements granting distributors the exclusive right to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller distribute Company Products in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not particular jurisdictions entered into in the ordinary course of business consistent with past practice);
(vi) Contract by which the Company or any of its Subsidiaries is granted the right to use any material Intellectual Property or any Intellectual Property incorporated into any Company Products, other than licenses for commercial software that is “off-the-shelf” or widely available and which software has not been customized by the vendor for the Company or any Subsidiary;
(vii) Contract by which the Company or any of its Subsidiaries has granted to any Person (A) the exclusive right to use any Intellectual Property or (B) a non-exclusive right to any Intellectual Property that is material to the conduct of its business; it being understood , other than in the ordinary course of business consistent with past practice;
(viii) joint venture, partnership or similar Contract that is material to the operation of the Company’s and its Subsidiaries’ business;
(ix) Contracts with respect to each category listed above for which a dollar amount threshold has been established, Seller or any item within such category with a value less Affiliate of Seller (other than the dollar amount specified shall be deemed immaterial. Seller is not Company and its Subsidiaries);
(and, x) Contracts containing “most-favored nation,” price protection or similar provisions;
(xi) Contracts relating to the best knowledge sale or other disposition of the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts assets of the Company or its Subsidiaries other than the sale of inventory and immaterial sales or other instrumentsdispositions of obsolete or excess equipment or inventory, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or each in the aggregateordinary course of business consistent with past practice;
(xii) Contracts relating to the acquisition by the Company or its Subsidiaries of any operating business or the capital stock of any other Person;
(xiii) Contracts pertaining to any transaction or incentive bonus, have “stay-put” or other similar compensatory payments, in any case, to be made to an employee of the Company or its Subsidiaries on or after the Closing Date as a Seller result of the execution of this Agreement or the consummation of the transactions contemplated hereby; or
(xiv) each commitment or agreement to enter into any of the foregoing.
(b) The Company has made available to Buyer true and complete copies of all Material Adverse EffectContracts. Each Contract or other instrumentof the Material Contracts and Real Property Leases is valid, obligation, evidence of indebtedness or commitment described binding and in paragraphs (a)-(g) above full force and effect on the Company and is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective termsterms by the Company and its Subsidiaries party thereto, and is, subject to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or and similar laws relating to or affecting creditors' ’ rights generally and except remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). With respect to the availability Material Contracts and the Real Property Leases, neither the Company nor any of equitable remediesits Subsidiaries nor, to the Company’s knowledge, any other party thereto, is in default under any such Material Contract, except where such default would not have a Material Adverse Effect. To the Company’s knowledge, there does not exist any condition that, with notice or lapse of time or both, would constitute a default in any material respect under any of Material Contract or Real Property Lease, nor has Seller, the Company nor any of its Subsidiaries received any written notice of default under any Material Contract or Real Property Lease.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth on Schedule 3.16 sets forth all Contracts presently in effect to which Seller 3.13, neither of Chouteau or the Subsidiaries (i) is a party in connection to any collective bargaining agreement or contract with the Businessany labor union, including, without limitation, (ii) is a party to any written or oral:
oral contract relating to any consulting services or to severance pay for any person, (aiii) commitmentis a party to any written or oral agreement or understanding to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), contractexcept for securities sold under a repurchase agreement providing for a repurchase date 30 days or less after the purchase date, note(iv) is a party to any (A) contract or group of related contracts with the same party for the purchase or sale of products or services, loan, evidence under which the undelivered balance of indebtedness, such products and services has a purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense price in excess of $5,000 and 50,000 for any individual contract, or (B) other 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, which is not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of entered into in the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line ordinary course of business and is either not terminable by it on 30 days' or compete with less notice without penalty or involves more than $50,000 for any person;
individual contract, or (eC) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect agreement material to the Business with business of Chouteau and the Subsidiaries, taken as a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments whole, which is not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not entered into in the ordinary course of business; it being understood that with respect to each category listed above , or (v) has any commitments for which a dollar amount threshold has been establishedcapital expenditures in excess of $25,000.
(b) Except as disclosed on Schedule 3.13, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, i) to the best knowledge of Chouteau and the StockholderSubsidiaries, since the date of the Latest Balance Sheets, no other party iscustomer has indicated that it will stop or decrease the rate of business done with Chouteau or the Subsidiaries (except for changes in the ordinary course of such business) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default that would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract material adverse effect on the business, operations or other instrumentfinancial condition of Chouteau and the Subsidiaries, obligationtaken as a whole; (ii) each of Chouteau and the Subsidiaries has performed all obligations required to be performed by it prior to the date hereof in connection with the contracts or commitments set forth on Schedule 3.13, evidence and neither of indebtedness Chouteau or the Subsidiaries is in receipt of any claim of default under any contract or commitment described set forth on Schedule 3.13, except for any failures to perform, breaches or defaults which would not, individually or in paragraphs the aggregate, have a material adverse effect on the business, operations or financial condition of Chouteau and the Subsidiaries, taken as a whole; (a)-(giii) above is a legal, valid and binding agreement, arrangement neither of Chouteau or the Subsidiaries has any present expectation or intention of not fully performing any material obligation pursuant to any contract or commitment of Seller enforceable against Seller in accordance with its respective terms, set forth on Schedule 3.13; and is, (iv) to the best knowledge of Seller Chouteau and the StockholderSubsidiaries, a legalthere has been no cancellation, valid and binding agreement, arrangement breach or anticipated breach by any other party to any contract or commitment of each other party thereto enforceable against such other partiesset forth on Schedule 3.13, except insofar for any cancellation, breach or anticipated breach which would not, individually or in the aggregate, have a material adverse effect on the business, operations or financial condition of Chouteau and the Subsidiaries, taken as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesa whole.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets forth all Contracts presently in effect to which Seller 11.1 No member of the Group is a party to nor does it have or has any liability (present or future) under:
(A) any guarantee, indemnity (other than those given in connection with infringement of Intellectual Property Rights), surety relationship or letter of credit (other than as described in paragraph 15 of this Schedule 3);
(B) other than in connection with the Business, including, without limitationProperties, any written contract for rent, lease, hire, hire purchase, credit sale, conditional sale or oral:
(a) commitment, contract, note, loan, evidence purchase by instalments calling for payments in excess of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' noticeL 2,500 per annum;
(bC) lease of personal property with respect any agency, distributorship or management agreement in relation to the Business involving any annual expense which revenues, commissions or expenses are in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options)L 10,000 per annum;
(cD) material governmental any contract or regulatory licenses arrangement which, restricts its freedom to carry on its business in any part of the world in such manner as it may think fit or permits required the ability to conduct transfer the Business as presently conductedwhole or any part of its business;
(dE) contracts any joint venture agreement or agreements containing covenants limiting the freedom of Seller to engage in arrangement, partnership rights or obligations or any line of business other similar agreement or compete with any personarrangement;
(eF) employment contractsany contract or arrangement which relates to matters outside the ordinary business of that member of the Group;
(G) any contract or arrangement in which any director of any member of the Group or any person connected with any such director is interested, either directly or indirectly, but excluding any contract or arrangement relating to either the terms upon which such director is employed or to Vested Options, Accelerated Options and Unvested Options;
(H) any contract or arrangement (other than a contract relating to Intellectual Property Rights) which cannot be terminated by that member on three months' notice or less without payment of compensation of any special fees; or
(I) any contract or arrangement which according to its terms can be terminated in the event of any change in the underlying ownership or control of that member, or where the terms of such contract or arrangement provide for a material amendment in terms upon such change.
11.2 So far as each of the Management Warrantors is aware no member of the Group is under any obligation, nor is any of them a party to any contract, which is material and cannot readily be fulfilled or performed by it on time and without undue or unusual expenditure of money or effort.
11.3 Copies of each agreement, document or other material evidencing, summarising or otherwise containing the terms and conditions of any material rights or obligations of any member of the Group, any contracts or arrangements which are of a material value the Group in terms of expenditure or revenue expectations and any contracts that are of fundamental importance to the activities of any member of the Group are attached to the Disclosure Letter.
11.4 Except as disclosed in the Disclosure Letter, no member of the Group has given any guarantee, indemnity, warranty, or made any representation (including by way of side letter or ancillary agreement), in respect of goods or services supplied or contracted to be supplied by it or accepted any liability or obligation that would apply after any such goods or services had been supplied by it, including without limitation, contracts in respect of the functionality or future functionality of any products or services.
11.5 So far as each of the Management Warrantors is aware there is no breach, invalidity, or grounds for determination, rescission, avoidance or repudiation of any contract to employ executive officers which any member of the Group is a party and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' no notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, received by any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge member of the Stockholder, no other party is) in breach or violation of, or default under, Group alleging any of the Contracts foregoing.
11.6 No member of the Group has outstanding any bid or other instrumentstender or sale or service proposal which is substantial in relation to its business and, obligationsif accepted, evidences of indebtedness or commitments described would be reasonably likely to result in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesloss.
Appears in 1 contract
Sources: Share Purchase Agreement (Veritas Software Corp /De/)
Contracts and Commitments. Schedule 3.16 sets (a) Except as set forth all in SCHEDULE 2.19 ("Contracts presently in effect and Commitments"), the Sellers and each Acquired Company have provided Buyer with a complete, accurate list of, or made available to Buyer copies of each of the following (each a "Company Commitment") to which Seller an Acquired Company is a party or by which any of its properties is bound and which presently remains executory in connection with the Business, including, without limitation, any written whole or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether part: (i) such customer each partnership; or supplier has renewed such contract for the period following the period covered thereby and joint venture agreement; (ii) such each guaranty or suretyship, indemnification or contribution agreement or performance bond (other than any Guaranty limited as to recourse to no more than Five Thousand Dollars ($5,000) and any Guaranty of any automobile or other vehicle retail installment sales contract permits such customer or supplier entered into and sold to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not a financial institution in the ordinary course of business); it being understood that with respect (iii) each instrument, agreement or other obligation evidencing or relating to each category listed above for which a dollar amount threshold has been established, any item within such category with a value less indebtedness of an Acquired Company involving more than the dollar amount specified shall be deemed immaterial. Seller is not Twenty-Five Thousand Dollars (and, to the best knowledge of the Stockholder, no other party is$25,000) in breach or violation ofany single case, or default under, any of the Contracts to money lent or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs to be lent to another Person involving more than One Hundred Thousand Dollars (a)-(g$100,000) above, where such breach or violation or default would, individually or in the aggregate, have other than any of its dealership customers in connection with the purchase, or the refinancing of the purchase, of any vehicle; (iv) each contract to purchase or sell real property; (v) each agreement with brokers of motor vehicles or sales or commission agents, public relations or advertising agencies, accountants or attorneys (other than in connection with this Agreement and the transactions contemplated hereby) involving total payments within any twelve (12) month period in excess of Ten Thousand Dollars ($10,000) and which is not terminable without penalty and no more than thirty (30) days' prior notice; (vi) each Related Party Agreement involving total payments within any twelve (12) month period in excess of Ten Thousand Dollars ($10,000) and which is not terminable without penalty on no more than thirty (30) days' prior notice; (vii) each contract containing any noncompetition agreement, covenant or undertaking; (viii) each Dealer Agreement to which an Acquired Company is a Seller Material Adverse Effect. Each Contract party and each other agreement providing for the purchase from a supplier of all or substantially all the requirements of an Acquired Company of a particular product or service; or (ix) each other instrument, obligation, evidence of indebtedness agreement or commitment described not made in paragraphs the ordinary course of business which is material to the Acquired Companies.
(a)-(gb) above is a legalTrue, correct and complete copies of all written Company Commitments have heretofore been delivered or made available to Buyer. Except as accurately set forth in SCHEDULE 2.19: (i) there are no existing or asserted defaults, events of default or events, occurrences, acts or omissions that, with the giving of notice or lapse of time or both, would constitute defaults or events of default under any Company Commitment material to the Acquired Companies by an Acquired Company or, to the Knowledge of the Sellers or the Acquired Companies, any other party thereto; and (ii) no penalties have been incurred, nor are amendments pending, with respect to the Acquired Companies Commitments material to the Acquired Companies. All Company Commitments are in full force and effect and are valid and binding agreementenforceable obligations of the Acquired Company, arrangement or commitment and to the Knowledge of Seller enforceable against Seller the Acquired Companies, the other parties thereto in accordance with its their respective termsterms and no defenses, and isoff-sets or counterclaims have been asserted or, to the best knowledge Knowledge of Seller and the StockholderAcquired Companies, may be made by any party thereto (other than by an Acquired Company), nor has an Acquired Company waived any rights thereunder, except as described in SCHEDULE 2.19. 18
(c) Except as disclosed in SCHEDULE 2.19 or contemplated hereby or by any other Transaction Document to which an Acquired Company or Stockholder is a legalparty, valid and binding agreement, arrangement no Acquired Company or commitment Sellers have received notice of each any plan or intention of any other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as any Company Commitment that is Material to the availability Acquired Companies to exercise any right to cancel or terminate that Company Commitment, and neither the Acquired Companies nor Sellers knows of equitable remediesany condition or state of facts which would justify the exercise of such a right.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets Except as set forth all Contracts presently in effect to which Seller is on the Disclosure Schedule, the Companies are not, individually or collectively, a party in connection with the Businessto, includingor bound or affected by any contract, without limitationlease, any agreement, covenant, license, instrument or commitment (whether written or oral) of any type, including the following:
(a) commitmentcontracts for the employment or compensation of any officer or individual employee, contractnot terminable without further liability at any time:
(b) contracts with any labor union;
(c) continuing contracts for the future purchase of materials, notesupplies or equipment, loanat a cost of $1,000 or more, evidence or to be delivered more than thirty (30) days after the date hereof;
(d) continuing contracts for the future provision of indebtednesstheir services;
(e) distribution or agency contracts, purchase order franchise contracts, or letter of credit involving any obligation or advertising commit ments, which cannot be terminated without further liability on the part of Seller with respect to the Business of Companies upon no more than $5,000 thirty (and not more than $10,000 in the aggregate30) and not cancelable (without liability) on not more than 30 days' notice;
(bf) lease of personal property pension, profit sharing, deferred compensation, retirement or stock option or stock purchase plans in effect with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased itemsofficers, term, annual rent and renewal options)employees or others;
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 leases under which they are lessor or listed on Schedule 3.16 lessee;
(including purchase orders, franchise h) underwriting agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold has been established, any item within such category agreements with a value less than broker or finder;
(i) consulting agreements;
(j) contracts for the dollar amount specified shall be deemed immaterial. Seller is not (andacquisition of a business, to the best knowledge or substantially all of the Stockholderproperty, no other party is) in breach or violation ofassets, or default under, stock of a business under which there are any continuing or unperformed obligations on the part of any of the parties thereto; or
(k) Any other contract, agreement, or commitment involving $1,000 or more or which is not terminable without further liability to the Companies upon no more than thirty (30) days' notice. There have been delivered to Buyer true and correct copies of each of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or listed in the aggregateDisclosure Schedule. All Contracts, have a Seller Material Adverse Effect. Each Contract or other instrumentare valid, obligation, evidence of indebtedness or commitment described binding and in paragraphs (a)-(g) above is a legal, valid full force and binding agreement, arrangement or commitment of Seller effect and are enforceable against Seller in accordance with its respective termstheir terms against all other parties to such Contracts. The Companies have performed all obligations required to be performed by them to date and are not in default in any material respect under any Contract to which they are a party. None of the Contracts were arrived at, and isor otherwise reflect, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement less than arms length negotiations or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remediesbargaining.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets forth (a) Section 4.11(a) of the Disclosure Schedules lists all of the following Contracts presently in effect to which Seller the Company or any Subsidiary thereof is a party and which are in connection with effect as of the Business, including, without limitation, any written or oraldate of this Agreement:
(ai) commitmentContracts that provide for the purchase of goods or services, contractincluding license agreements, notesales representative agreements, loanreseller agreements and independent software vendor agreements, evidence of indebtedness, purchase order by the Company or letter of credit involving any obligation Subsidiary thereof from any Person that contemplate the expenditure by the Company or liability on the part of Seller with respect to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;
(b) lease of personal property with respect to the Business involving any annual expense Subsidiary thereof in excess of One Hundred Thousand and 00/100 Dollars ($5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased items, term, annual rent and renewal options100,000.00);
(cii) material governmental Contracts that provide for the for the sale by the Company or regulatory licenses any Subsidiary thereof of materials, supplies, goods, services, equipment or permits required other assets that provides for either aggregate annual payments to conduct the Business as presently conductedCompany or any Subsidiary thereof in excess of One Hundred Thousand and 00/100 Dollars ($100,000.00);
(diii) contracts Contracts relating to the borrowing of money by the Company or agreements any Subsidiary thereof, to the granting by the Company or any Subsidiary thereof of a Lien on any of its material assets, or any guaranty by the Company or any Subsidiary thereof of any Liability or obligation in respect of borrowed money or otherwise;
(iv) Contracts containing covenants limiting any Liability or obligation to provide support or maintenance for Company Products for any period in excess of twelve (12) months;
(v) Contracts continuing over a period of more than one year from the date thereof that are not terminable by each of the Company and its Subsidiary that are a party thereto upon thirty (30) or fewer days' notice without penalty;
(vi) Contracts that limit the freedom of Seller the Company or any Subsidiary thereof to engage compete in any line of business or compete with any personPerson or in any area or which would so limit the Company or any Subsidiary thereof after the Closing Date, including any agreement containing covenants or other Liabilities or obligations granting or containing any current or future commitments regarding exclusive rights, non-competition or “most favored nations” restriction on the operation or scope of its businesses or operations, or similar terms;
(evii) employment contractsagreements with any employee, including without limitationofficer or consultant that require the Company or any Subsidiary thereof to pay compensation to such employee, contracts to employ executive officers and other contracts with officers officer or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller consultant in excess of $2,000 per year 100,000;
(Schedule 3.16 sets forth all such contracts with customers viii) powers of attorney executed on behalf of the Company or any Subsidiary thereof;
(ix) any partnership, joint venture or other similar agreement or arrangement;
(x) any agreement relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise);
(xi) any agreement requiring the escrow of any source code or other software or technology owned by the Company or any Subsidiary thereof;
(xii) any Material In-Bound IP Agreement and suppliers currently in effect and any Material Out-Bound IP Agreement;
(xiii) any agreement providing for each such contract includes a notation as to whether (i) such customer indemnification, guaranty or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less)guaranteed results; and
(gxiv) contracts any agreement that if, terminated, would reasonably be expected to have a Material Adverse Effect.
(b) Except as set forth in Section 4.11(b) of the Disclosure Schedules, (i) neither the Company nor any Subsidiary thereof has materially breached any Contract set forth in Section 4.11(a) of the Disclosure Schedules, and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business Company's Knowledge, no Contract set forth in Section 4.11(a) of the Disclosure Schedules has been materially breached in any respect or otherwise affecting cancelled by the Business other party and has not been duly cured or reinstated, (ii) neither the Company nor any Subsidiary thereof is in receipt of any written claim of default under contracts not in any such Contract, agreement or arrangement and (iii) to the ordinary course of business; it being understood Company's Knowledge, no event has occurred that with respect to the passage of time or the giving of notice or both would result in a material breach or default under any such Contract, agreement, matter or arrangement. To the Company's Knowledge, each category Contract and commitment listed above for which a dollar amount threshold has been establishedin Section 4.11(a) of the Disclosure Schedules is valid, any item within such category with a value less than binding, in full force and effect, and enforceable against the dollar amount specified shall be deemed immaterial. Seller Company and each Subsidiary thereof that is not (party thereto and, to the best knowledge of Company's Knowledge, against the Stockholder, no other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, (except insofar as such enforceability the enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium moratorium, fraudulent transfer or similar laws other Laws relating to or affecting limiting creditors' rights generally or by general principles of equity, regardless of whether such enforceability is considered in a proceeding at law or in equity) and except will continue to be legal, valid, binding, in full force and effect, and enforceable following the consummation of the transactions contemplated by this Agreement without obtaining any consent, including with respect to any deemed assignment or transfer, and without the payment of any penalties, special assessments, or other amounts as a result of the Company entering into this Agreement or the consummation of the transactions contemplated hereby. With respect to each Contract and commitment listed in Section 4.11(a) of the Disclosure Schedules, the Company has made available to Parent a correct and complete copy in all material respects of each written Contract and commitment (as amended to date).
(c) Except as set for in Section 4.11(c) of the Disclosure Schedules, no third party consents shall be required to assign or transfer the agreements listed in Section 4.11(a) of the Disclosure Schedules from the Company or any Subsidiary thereof to the availability Surviving Corporation (the consent that is specifically designated in Section 4.11(c) of equitable remediesthe Disclosure Schedules as “Designated Third Party Consent” is referred to as the “Designated Third Party Consent”).
Appears in 1 contract
Contracts and Commitments. Section 3.13 of the Disclosure Schedule 3.16 sets forth a list of all of the following Contracts presently in effect (other than Plans, except to the extent contemplated by Sections 3.13(a) or (b)) to which Seller the Company is a party in connection with or by which the BusinessCompany or its respective assets are bound (each, including, without limitation, any written or oral:a “Material Contract”):
(a) commitmentemployment agreements or severance agreements or employee termination arrangements, contractin any such case, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect to the Business senior executive officers of more than the Company and employees earning a base salary in excess of $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice200,000 per year;
(b) lease any change of personal property control agreements with respect to the Business involving any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description employees of the leased items, term, annual rent and renewal options)Company;
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements Contracts containing covenants any covenant limiting the freedom ability of Seller the Company to engage in any line of business or to compete with any personbusiness or Person;
(d) Contracts with Seller or any owner, partner, member, officer, director or employee of Seller (other than any employment, severance and change of control agreements covered by clause (a) or (b) above);
(e) employment contractsContracts under which the Company has borrowed or loaned money, including without limitationor any note, contracts bond, indenture, mortgage, installment obligation or other evidence of indebtedness for borrowed or loaned money or any guarantee of such indebtedness, in each case, relating to employ executive officers and other contracts with officers or directors amounts in excess of Seller$250,000;
(f) contracts with customers and suppliers leases pursuant to which material real property is leased to or from the Company;
(g) guaranties, suretyships or other contingent agreements of Seller the Company involving underlying obligations of not less than $250,000;
(h) any Contract relating to capital expenditures with respect to the Business with a gross value to Seller Company and involving future payments which exceed $250,000 in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether any 12-month period;
(i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) Contract relating to the Business acquisition or otherwise affecting the Business under contracts not disposition of material assets (other than in the ordinary course of businessbusiness consistent with past practice) or any capital stock of any business enterprise; it being understood that with respect and
(j) Contracts (other than those covered by clauses (a) through (i) above) pursuant to each category listed above for which a dollar amount threshold the Company is entitled to receive or has been establishedan obligation to pay in excess of $1,000,000 over any twelve- month period. The Company has made available to Buyer true, any item within such category with a value less than complete, and correct copies of all Material Contracts. Each of the dollar amount specified shall be deemed immaterial. Seller Material Contracts is not (valid and binding upon the Company and, to the best knowledge Company’s Knowledge, is in full force and effect in all material respects and enforceable by the Company in accordance with its respective terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles. As of the Stockholderdate hereof, no with respect to all Material Contracts, neither the Company nor, to the Company’s Knowledge, any other party is) to any such contract is in breach or violation of, thereof or default underthereunder and, to the Company’s Knowledge, there does not exist under any event which, with the giving of notice or the Contracts or other instrumentslapse of time, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where would constitute such a breach or violation default, except for such breaches, defaults and events as to which requisite waivers or default wouldconsents have been obtained or which would not, individually or in the aggregate, have result in a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally and except as to the availability of equitable remedies.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets forth all (a) SCHEDULE 3.11 lists each of the following Contracts presently in effect (x) by which any of the Purchased Assets, the Inventory or the Facilities are bound or affected, or (y) to which Seller is a party or by which it is bound in connection with the GAP Business, including, without limitation, any written the Purchased Assets or oralthe Inventory:
(ai) commitment, contract, note, loan, evidence all Contracts involving aggregate consideration in excess of indebtedness, purchase order US$50,000 or letter of credit involving requiring performance by any obligation or liability on the part of Seller with respect to the Business of party more than $5,000 (and one year from the Execution Date, which, in each case, cannot be cancelled without penalty or without more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 180 days' ’ notice;
(bii) lease of personal property with respect all Contracts that relate to the Business involving sale of any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of the leased itemsPurchased Assets or the Inventory, term, annual rent and renewal options);
(c) material governmental or regulatory licenses or permits required to conduct the Business as presently conducted;
(d) contracts or agreements containing covenants limiting the freedom of Seller to engage in any line of business or compete with any person;
(e) employment contracts, including without limitation, contracts to employ executive officers and other contracts with officers or directors of Seller;
(f) contracts with customers and suppliers of Seller with respect to the Business with a gross value to Seller in excess of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); and
(g) contracts and commitments not otherwise described in this Section 3.16 or listed on Schedule 3.16 (including purchase orders, franchise agreements and undertakings or commitments to any Governmental Entity) relating to the Business or otherwise affecting the Business under contracts not than in the ordinary course of business, for consideration in excess of US$50,000;
(iii) all Contracts that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case involving amounts in excess of US$50,000;
(iv) except for agreements relating to trade receivables, all Contracts relating to Indebtedness (including, without limitation, guarantees), in each case having an outstanding principal amount in excess of US$50,000;
(v) any Contract or other document that limits the freedom of Seller or any Affiliate of Seller to compete in any line of business similar to the GAP Business or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any asset;
(vi) any partnership, joint venture or other similar Contract;
(vii) any agency, dealer, sales representative or other similar agreement;
(viii) all Contracts between or among Seller on the one hand and any Affiliate of Seller on the other hand; it being understood that and
(ix) all collective bargaining agreements or Contracts with any labor organization, union or association with respect to each category listed above for which a dollar amount threshold has been establishedthe Business Employees.
(b) With respect to Seller’s obligations thereunder, any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (and, to the best knowledge of the Stockholder, no other party is) in breach or violation of, or default under, any all of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, set forth on SCHEDULE 3.11 are valid and binding agreementobligations of Seller, arrangement or commitment of Seller enforceable against Seller in accordance with its their respective terms, and is, terms (subject to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar reorganization and other laws of general applicability relating to or affecting creditors' ’ rights generally and except to general principles of equity). Except as specifically set forth on SCHEDULE 3.11, (i) to Seller’s knowledge, no Contract or commitment disclosed on SCHEDULE 3.11 has been breached in any material respect by the availability other party thereto, or cancelled by the other party thereto, and (ii) Seller has performed all material obligations under the contracts listed on SCHEDULE 3.11 required to be performed by Seller as of equitable remediesthe Execution Date and no event has occurred which, with notice or lapse of time or both, would constitute such a material breach or default by Seller.
(c) Seller has made available to Buyer a true and correct copy of all written Contracts which are referred to on SCHEDULE 3.11, together with all amendments, exhibits, attachments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. Schedule 3.16 sets forth (a) The “Contracts Schedule” attached hereto lists all Contracts presently in effect of the following written agreements, to which Seller the Company or any of its Subsidiaries is a party and which are currently in connection with the Business, including, without limitation, any written or oral:
(a) commitment, contract, note, loan, evidence of indebtedness, purchase order or letter of credit involving any obligation or liability on the part of Seller with respect effect and do not relate exclusively to the Business of more than $5,000 (and not more than $10,000 in the aggregate) and not cancelable (without liability) on not more than 30 days' notice;Outdoors Business:
(b) lease contracts which involve commitments to make capital expenditures or which provide for the purchase of personal property with respect to goods or services by the Business involving Company or its Subsidiaries from any annual expense one Person under which the undelivered balance of such products or services has a purchase price in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates 500,000 other than purchase orders with respect to each such lease listed thereon a general description suppliers in the ordinary course of the leased items, term, annual rent and renewal options)business;
(c) material governmental or regulatory licenses or permits required to conduct contracts with any of the top ten (10) customers for each of the Communities Business as presently conductedand the Sports Business for fiscal year 2016, and the Material Customer Contracts;
(d) contracts relating to Indebtedness of the Company or its Subsidiaries or any guaranty by the Company or its Subsidiaries of any obligation in respect of borrowed money;
(e) material contracts under which the Company or its Subsidiaries is a licensee of any Proprietary Rights owned by any third party (other than non-exclusive licenses of commercially-available software);
(f) material contracts under which the Company or its Subsidiaries is a licensor of any Proprietary Rights owned by the Company or its Subsidiaries (other than licenses granted to customers);
(g) contracts with dealers, distributors or non-employee sales representatives pursuant to which the Company or its Subsidiaries makes annual payments in excess of $150,000;
(h) employment or consulting agreements with any employee, officer, manager or natural born consultant (other than employment agreements or offer letters that do not deviate in any material respect from the standard form employment agreements and offer letters provided to Purchaser) whose base annual compensation is $225,000 or more;
(i) any contract, task order or delivery order that is (x) between the Company or its Subsidiaries and a Governmental Authority or (y) entered into by the Company or its Subsidiaries as a subcontractor (at any tier) to provide supplies or services in connection with a contract between another entity and a Governmental Authority, in each case, that generates annual revenue in excess of $400,000 (except in the case of any such contract that exclusively relates to the Outdoors Business and does not generate annual revenue in excess of $1,500,000);
(j) contracts pursuant to which the Company or its Subsidiaries is a lessor or a lessee of any property, personal or real, or holds or operates any tangible personal property owned by another Person, except for any leases of personal property under which the aggregate annual rent or lease payments do not exceed $125,000;
(k) any contract granting any Person a right of first refusal, a right of first offer or an option to purchase, acquire, sell or dispose of any material assets;
(l) any joint venture agreement or arrangement;
(m) any material contract containing covenants any covenant, commitment or other obligation (A) limiting in any material respect the freedom right of Seller the Company or any of its Subsidiaries to engage compete with any Person in any line of business or compete with geographic area, or (B) otherwise prohibiting or limiting in any personmaterial respect the right of the Company or any of its Subsidiaries to sell, distribute or manufacture any products or services;
(en) employment contracts, including without limitation, contracts any contract pursuant to employ executive officers and other contracts with officers which the Company or directors any of Sellerits Subsidiaries has an obligation to make a material investment in or loan to another Person;
(fo) contracts with customers and suppliers any contract, including any settlement agreement, other than of Seller with respect the type described in the subclauses above, that would reasonably be expected to require any payment to or from the Business with a gross value to Seller Company or its Subsidiaries in excess of $2,000 500,000 per year annum or $1,000,000 in the aggregate or imposes any material continuing obligations on the Company and its Subsidiaries;
(Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (ip) such customer or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less)any Affiliate Agreement; and
(gq) contracts any acquisition or divestiture agreements within the past three (3) years (by merger, purchase or sale of stock or assets or otherwise) that contain any continuing indemnification rights or obligations, earn-outs or similar obligations.
(r) The Company has made available to Purchaser a true and commitments not otherwise described in this Section 3.16 or correct copy of each contract listed on Schedule 3.16 the Contracts Schedule. Except as disclosed on the attached “Contracts Schedule,” (including purchase orders, franchise agreements and undertakings or commitments i) no contract required to any Governmental Entity) relating to be set forth on the Business or otherwise affecting the Business under contracts not in the ordinary course of business; it being understood that with respect to each category listed above for which a dollar amount threshold attached “Contracts Schedule” has been established, breached in any item within such category with a value less than material respect by the dollar amount specified shall be deemed immaterial. Seller is not (andCompany or any of its Subsidiaries or, to the best knowledge Company’s Knowledge, by the other party to the contract, (ii) neither the Company nor any of its Subsidiaries is in receipt of any written claim of default under any such contract and (iii) each contract required to be listed on the attached “Contracts Schedule” is valid, binding and enforceable against the Company or one or more members of the StockholderCompany Group, no as applicable, and to the Company’s Knowledge the other party is) in breach or violation of, or default under, any of the Contracts or other instruments, obligations, evidences of indebtedness or commitments described in paragraphs (a)-(g) above, where to such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other party thereto enforceable against such other partiescontract, except insofar as such enforceability may be limited by (A) applicable insolvency, bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' ’ rights generally and except as to the availability of (B) applicable equitable remediesprinciples (whether considered in a proceeding at law or in equity).
Appears in 1 contract
Sources: Stock Purchase and Merger Agreement (Global Payments Inc)
Contracts and Commitments. Except as set forth on Schedule 3.16 sets forth all Contracts presently in effect 3.15 of the Disclosure Schedule, with respect to which Seller is Seller, the Company and the Subsidiaries taken as a party in connection with the Business, including, without limitation, any written or oralwhole:
(a) commitmentThere are no contracts or commitments under which Seller, contract, note, loan, evidence the Company or any Subsidiary is required to pay in excess of indebtedness, purchase order $100,000 or letter of credit involving any obligation or liability on the part of Seller with respect to the Business which extend for a term of more than $5,000 (and not more than $10,000 in one year after the aggregate) and not cancelable (without liability) on not more than 30 days' noticeClosing;
(b) lease There are no outstanding sales contracts, commitments, or proposals of personal property with respect Seller, the Company or any Subsidiary that call for the payment or receipt of more than $100,000 in any fiscal quarter or which Seller, the Company or any Subsidiary believes will result in any loss to Seller, the Business involving Company or any annual expense in excess of $5,000 and not cancelable without liability within 30 days (Schedule 3.16 indicates with respect to each such lease listed thereon a general description of Subsidiary, as the leased itemscase may be, term, annual rent and renewal options)upon full completion or performance thereof;
(c) material governmental There are no outstanding contracts with managers, officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors, or regulatory licenses dealers or permits required to conduct any agreement or arrangement providing for the Business as presently conductedpayment of any bonus or commission based on sales or earnings;
(d) contracts Seller, the Company and each Subsidiary are not in default, nor to the Company’s Knowledge is there any basis for any valid claim of default, under any contract made or agreements containing covenants limiting obligation owed by Seller, the freedom of Seller to engage in Company or any line of business or compete with any personSubsidiary;
(e) employment contractsSeller, including without limitation, contracts the Company and each Subsidiary are not restricted by any contract to employ executive officers and other contracts with officers or directors of Sellerwhich they are individually a party from carrying on their respective businesses anywhere in the world;
(f) contracts with customers and suppliers of Seller There are no material liabilities or obligations with respect to the Business with a gross value to Seller return of inventory or merchandise in excess the possession of $2,000 per year (Schedule 3.16 sets forth all such contracts with customers and suppliers currently in effect and for each such contract includes a notation as to whether (i) such customer wholesalers, distributors, retailers, or supplier has renewed such contract for the period following the period covered thereby and (ii) such contract permits such customer or supplier to terminate such contract on 60 days' notice or less); andother customers;
(g) contracts and commitments not otherwise described in this Section 3.16 There are no obligations for borrowed money, including guarantees of or listed on Schedule 3.16 agreements to acquire any such obligation of others;
(including purchase orders, franchise agreements and undertakings or commitments h) There are no outstanding loans to any Governmental EntityPerson;
(i) There is no power of attorney outstanding or any obligations or liabilities (whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, due or to become due or otherwise), as guarantor, surety, co-signer, endorser, co-maker or indemnitor in respect of the obligation of any Person;
(j) None of the employees, officers, managers, directors or equity owners of Seller, the Company or the Subsidiaries have any interest in any property, real or personal, tangible or intangible, including without limitation the rights relating to the Business Intellectual Property, that is used in the conduct of the Business;
(k) There are no outstanding contracts under which the amount payable is dependent upon the revenue, income or otherwise affecting other similar measure of Seller, the Business under contracts not Company, any Subsidiary or any other Person;
(l) There are no outstanding contracts, licenses, leases, agreements or other arrangements with respect to any Owned Property;
(m) There are no outstanding contracts, agreements, arrangements or understandings relating to or involving any franchise, partnership, joint venture or other similar arrangement;
(n) There are no outstanding contracts, agreements, arrangements or understandings with respect to mergers or acquisitions, sales of securities or sales of assets (other than sales of assets in the ordinary course of business consistent with past practice), or investments by Seller, the Company or any Subsidiary including any such contracts involving earnouts or seller financing;
(o) There are no outstanding contracts, agreements, arrangements or understandings with governmental agencies, departments or authorities;
(p) There are no contracts, agreements, arrangements or understandings with any officer, employee, director, agent, manager, consultant or advisor of Seller, the Company or any of the Subsidiaries providing for the acceleration of vesting or payment of any amounts of the vesting of any additional rights upon the occurrence of a change of control of Seller, the Company or any Subsidiary or upon the occurrence of any of the transactions contemplated by this Agreement or the Unitholders Agreement; and
(q) There are no agreements, contracts, commitments, or restrictions that are material to the business; it being understood that , financial condition, working capital, assets, liabilities (whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, due or to become due or otherwise), reserves or operations of Seller, the Company or any of the Subsidiaries or which require the making of any charitable contribution. All of the contracts listed in Schedule 3.15 of the Disclosure Schedule, including all amendments or modifications thereto, all leases listed on Schedule 3.20 of the Disclosure Schedule and all License Agreements are sometimes collectively referred to as “Material Contracts.” The Company has furnished to Purchaser true and correct copies of all Material Contracts (or descriptions thereof, in the case of oral contracts). Each Material Contract (or description) sets forth the entire agreement and understanding between Seller, the Company, the Subsidiaries and the other parties thereto. Each Material Contract is valid, binding and in full force and effect. There is no event or condition which has occurred or exists which constitutes or which, with respect to each category listed above for which or without notice, the happening of any event and/or the passage of time, could constitute a dollar amount threshold has been establisheddefault or breach under any such Material Contract by Seller, the Company or any item within such category with a value less than the dollar amount specified shall be deemed immaterial. Seller is not (andSubsidiary or, to the best knowledge of the StockholderCompany’s Knowledge, no any other party is) in breach or violation ofthereto, or default under, could cause the acceleration of any obligation or loss of the Contracts or other instruments, obligations, evidences any rights of indebtedness or commitments described in paragraphs (a)-(g) above, where such breach or violation or default would, individually or in the aggregate, have a Seller Material Adverse Effect. Each Contract or other instrument, obligation, evidence of indebtedness or commitment described in paragraphs (a)-(g) above is a legal, valid and binding agreement, arrangement or commitment of Seller enforceable against Seller in accordance with its respective terms, and is, to the best knowledge of Seller and the Stockholder, a legal, valid and binding agreement, arrangement or commitment of each other any party thereto enforceable against such other parties, except insofar as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws relating give rise to any right of termination or affecting creditors' rights generally and except as cancellation thereof. The Company has no reason to believe that the availability of equitable remediesparties to any Material Contract will not fulfill their obligations thereunder in all material respects.
Appears in 1 contract
Sources: Securities Purchase Agreement (FMC Technologies Inc)