Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules sets forth a list of the following Contracts to which the Company is a party: (i) any partnership, joint venture, or similar Contract that involves the sharing of profits or losses; (ii) any Contract with a Significant Customer or Significant Supplier; (iii) any Labor Agreement; (iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000); (v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification; (vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business; (vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business; (viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company; (ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business); (x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement; (xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority; (xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility; (xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement; (xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice; (xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business); (xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effect. (b) Each of the Contracts set forth or required to be set forth on Section 3.12
Appears in 2 contracts
Sources: Stock Purchase Agreement (Cheetah Net Supply Chain Service Inc.), Stock Purchase Agreement (Cheetah Net Supply Chain Service Inc.)
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules Schedule 4.12(a) sets forth a an accurate, correct and complete list of each of the following Contracts in effect as of the date hereof, to which the Company is a party, by which it is bound or pursuant to which it is an obligor or a beneficiary:
(i) any partnership, joint venture, or similar Any Contract that involves the sharing of profits or losses;
with respect to real property (ii) including any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting which restrains the ability of the Company to enter into use such real property) or engage material tangible or other property (including Intellectual Property (as defined in Section 4.13), all Contracts with affiliates, all employee termination or severance agreements, all Plans (as defined in Section 4.16(a)), all contracts relating to the capital stock or other securities of the Company and all employment agreements;
(ii) Any Contract for expenditures or services by the Company that involves amounts in excess of $20,000 for project Contracts or $10,000 for any other Contracts in any market fiscal year;
(iii) Any Contract evidencing any indebtedness of the Company for borrowed money in excess of $5,000 or line obligation for the deferred purchase price of business assets in excess of $10,000 (excluding normal trade payables) or otherwise including provisions on guaranteeing any indebtedness, obligation or liability;
(iv) Any Contract wherein the Company has agreed to a non-competition provision;
(v) Any joint price-fixingventure, “most favored nation”partnership, market teaming arrangement, cooperative arrangement or customer sharing, exclusivity or market classificationany other Contract involving a sharing of profits;
(vi) Any Contract with any Contract Governmental Entity other than for the services or sale of any of the assets of the Company, other than property in the Ordinary Course ordinary course of Businessbusiness;
(vii) any Contract relating Any power of attorney, proxy or similar instrument granted by or to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of BusinessCompany;
(viii) Any agreement, arrangement or understanding with any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the CompanyRelated Party;
(ix) any Contract under which the Company has made advances Any subcontract currently in effect involving past or loans to any other Person (which shall not include advances made to an employee anticipated revenues in excess of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant $10,000 and to which the Company is granted a lease in, a sublease in, party either as the prime contractor or the right to use or occupy any Leased Real Property facility;subcontractor, except where the Company acts solely as an agent; and
(xiiix) any Any other Contract that requires a consent related to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation business of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivableCompany, as the case may becurrently conducted, which involves payments in excess of $50,000 on an annual basis 5,000, or in excess of $250,000 over the current Contract term which relates to material rights, assets or (B) has a term greater than one year liabilities, and canis not be cancelled by the Company, as applicable, without penalty or further payment and without more its express terms cancelable upon less than thirty (30) days’ ' notice;, or which was entered into other than in the ordinary course of business.
(xvb) Contracts under Current, correct and complete copies of each such Contract described in this Section 4.12 have been delivered by the Company to Centra.
(c) Except as set forth on Schedule 4.12(c), each Contract listed or referred to on Schedule 4.12 or listed or referred to on any other Schedule to this Agreement to which the Company is a licensor party, by which it is bound or otherwise grants pursuant to which it is an obligor or a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers beneficiary is in full force and effect. Except as set forth on a non-exclusive basis in the Ordinary Course of BusinessSchedule 4.12(c);
(xvi) any other agreement (not described in clauses , (i) the Company has complied with all commitments and obligations on its part to be performed or observed under each such Contract to which it is a party; (xviiii) aboveto the knowledge of the Company, each party to each such Contract other than the Company has complied with all commitments and obligations on its part to be performed or observed thereunder; and (iii) the termination Company has not received any notice of a default under any such Contract and no event or condition has occurred or currently exists which constitutes a default or, after notice or lapse of time or both, would reasonably constitute a default under any such Contract by the Company. The transactions contemplated by this Agreement will not be expected to have a Company Material Adverse Effect.
(b) Each considered an assignment of any of the Contracts set forth or required prohibiting assignment, except for those Contracts as to be set forth on which Consents have been obtained and are being delivered pursuant to Section 3.128.2(a) below.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 Except as set forth of Schedule 4.08(a), the Company is not party to (including following the Pre-Closing Assignment), nor is the Business (or any portion thereof) nor any of the Company’s properties or assets bound to any written or oral:
(i) Contracts involving an investment by the Company Disclosure Schedules sets forth a list in any Person, including any partnership, limited liability company or joint venture;
(ii) Contracts with Independent Contractors involving in any one case payments of more than $50,000 per year;
(iii) sales agency, sales representative and/or marketing Contracts;
(iv) Contracts under which any revenue, profit or income of the following Business is required to be, or may be, shared with any third Person;
(v) Contracts (including, without limitation, any outstanding decrees, orders, judgments, settlement agreements or stipulations) pursuant to which the Company is a party:
(i) any partnership, joint venturegranted, or similar Contract that involves the sharing of profits or losses;
(ii) grants to any Contract with a Significant Customer or Significant Supplier;
(iii) other Person, any Labor Agreement;
(iv) rights in any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, Intellectual Property other than in the case ordinary course of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classificationbusiness;
(vi) Contracts in which any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Businessparty thereto is a Governmental Authority;
(vii) Contracts with any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of BusinessKey Customers;
(viii) Contracts with any Key Suppliers;
(ix) Contracts (A) for the employment or service of any prospective or existing officer, employee or other person on a full-time or consulting basis providing for fixed compensation in excess of One Hundred Thousand Dollars ($100,000) per annum, (B) providing for severance compensation in excess of One Hundred Thousand Dollars ($100,000), or (C) providing for the payment of Transaction Bonuses or any other retention, change in control, transaction, or similar bonus compensation;
(x) collective bargaining agreements or other Contracts with any labor union or works council;
(xi) agreement or indenture relating to the incurrence, assumption, surety or guarantee borrowing of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any material portion of the Company’s assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority guaranty of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authorityfor borrowed money;
(xii) any Contract pursuant to lease or agreement under which the Company it is granted a lease in, a sublease inlessee of, or the right to use holds or occupy operates any Leased Real Property facilitypersonal property owned by any other party involving annual rental payments in excess of $10,000;
(xiii) lease or agreement under which it is lessor of or permits any Contract that requires a consent third party to hold or otherwise contains a provision relating to a “change operate any property, real or personal involving annual rental payments in excess of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement$10,000;
(xiv) Contracts with current or former officer, director, manager, shareholder, member, Affiliate of the Company or Seller or any individual related by blood, marriage, affinity or adoption (or by any other Contract that (Afamily relationship) involves to any such individual or any entity in which any such Person owns a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ noticebeneficial interest;
(xv) Contracts in connection with the settlement or other resolution of any pending or Threatened claim under which the Company is a licensor has any material continuing obligations, liabilities or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business)restrictions;
(xvi) Contracts providing for indemnification by the Company of a third party that would be material to the Company, other than any other such agreement (not described entered into in clauses (i) to the ordinary course of business;
(xvii) aboveContracts that contains outstanding or unsatisfied earn out, purchase price adjustment or other contingent obligations;
(xviii) Contracts prohibiting the termination Company from freely engaging in any line of which would reasonably be expected business or competing with any Person; or
(xix) Contracts for any capital expenditure or leasehold improvement in excess of Fifty Thousand Dollars ($50,000); or
(xx) to have the extent not described elsewhere in this Section 4.08(a), Contracts with a total remaining commitment by or to the Company Material Adverse Effectin excess of $50,000.
(b) Each As of the date hereof (i) the Company is not in breach or default in any material respect under any of the Contracts set forth listed on Schedule 4.08(a) (each, a “Material Contract” and, collectively, the “Material Contracts”) and each Material Contract is in full force and effect, is valid and enforceable against the Company, and (ii) to Seller’s knowledge, (A) the other parties to the Material Contracts are not in breach or required default in any material respect thereunder and (B) each Material Contract is valid and enforceable against such other parties. Seller has made available to be set forth on Section 3.12Buyer a true and correct copy of each Material Contract.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Climb Global Solutions, Inc.)
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules sets Except as set forth in Part 3.16 and for any Contract with Buyer, Seller is not a list party to or otherwise obligated under any of the following Contracts that principally relate to the Business, the Purchased Assets, or the Assumed Liabilities, whether written or oral:
(a) Any single Contract providing for an expenditure in excess of $15,000 or Contracts with the same or affiliated vendor(s) providing for an expenditure in excess of $25,000, in the aggregate, for the same, or a related product or service;
(b) Any single Contract providing for the sale of products or services in an amount in excess of $15,000 or Contracts with the same or affiliated customer(s) providing for the sale of products or services in an amount in excess of $25,000;
(c) Any Contract providing for the purchase of goods or services which has not yet been completed;
(d) Any Contract pursuant to which Seller (with respect to the Company Business) is the lessee or sublessee of, or holds or operates, any real or personal property owned or leased by any other person or entity (other than leases of personal property leased in the Ordinary Course with annual lease payments no greater than $10,000);
(e) Any revocable or irrevocable power of attorney relating to the Purchased Assets or the Business granted to any person, firm or corporation for any purpose whatsoever;
(f) Any arrangement or other agreement relating to the Purchased Assets or the Business which involves (i) a party:sharing of profits, (ii) future payments of $5,000 or more per annum to other persons, or (iii) any teaming, joint venture, partnership or similar contract or arrangement;
(g) Any sales agency, sales representation, distributorship or franchise agreement relating to the Purchased Assets or the Business;
(h) Any arrangement or other agreement with, including any payments to, a physician;
(i) Any Contract prohibiting Seller (with respect to the Business) from competing with any partnership, joint venture, Person or similar Contract that involves prohibiting Seller or any Business Employee (other than for the sharing benefit of profits or lossesSeller) from freely engaging in the Business anywhere in the world;
(iij) any Any Contract wherein Seller (with respect to the Business) agreed to indemnify a Significant Customer customer for damages or Significant Supplierlosses arising from the customer’s own actions;
(iiik) any Labor AgreementAny union or collective bargaining agreement;
(ivl) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Any Contract pursuant to which the Company is Business (A) uses any Intellectual Property of any other Person (other than unmodified, commercially available, off-the-shelf computer software that (1) has a replacement cost per license agreement (for all of the Business’s end users of such software) of less than $100,000 per year or (2) all of such excluded software together has an aggregate replacement cost of $300,000 or less), (B) incorporates any Intellectual Property of any other Person in any of its Products, (C) granted a lease in, a sublease in, or agreed to grant any other Person the right to use any material Intellectual Property, (D) developed or occupy had developed any Leased Real Property facilitymaterial Intellectual Property, or (E) assigned or agreed to assign ownership of any material Intellectual Property;
(xiiim) Any Contract between Seller (in connection with the Business), on the one hand, and any Contract that requires a consent to subsidiary, shareholder, director, or otherwise contains a provision relating to a “change officer or Affiliate, or family member of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation Affiliate, of the transaction contemplated by this AgreementBusiness or a Seller (in connection with the Business) on the other hand;
(xivn) Any Contract or option relating to the acquisition or sale by the Business of any material asset or group of assets, or any other Contract that (A) involves a future or potential Liability or receivableownership interest in, as the case may beBusiness, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effect.
(b) Each of the Contracts set forth or required to be set forth on Section 3.12this Agreement; or
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 4.17 of the Company Disclosure Schedules Schedule sets forth a list of the following all material agreements, Contracts and commitments to which the Company or any Company Subsidiary is a partyparty or by which the Company, any Company Subsidiary or their respective assets are bound (each, a "Material Contract"), including, without limitation:
(ia) any partnershipagreements, joint venturecontracts, commitments or similar Contract that involves the sharing of profits or lossesarrangements involving Intellectual Property;
(iib) any Contract with employment agreements or severance agreements or employee termination arrangements that are not terminable at will by the Company or a Significant Customer or Significant SupplierCompany Subsidiary without penalty;
(iiic) any Labor Agreementchange of control agreements with employees of the Company or any Company Subsidiary;
(ivd) agreements, contracts, commitments or arrangements containing any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially covenant limiting or restricting the ability of the Company or any Company Subsidiary to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market to compete with any business or customer sharing, exclusivity or market classificationperson;
(vie) agreements or contracts with any officer, director or employee of (i) the Company or (ii) any Contract Company Subsidiary (other than employment, severance and change of control agreements covered by clause (b) or (c) above);
(f) agreements or contracts under which the Company or any Company Subsidiary has borrowed or loaned money, or any note, 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 amounts in excess of $5,000;
(g) joint venture agreements or other agreements involving the sale sharing of profits;
(h) leases pursuant to which personal or real property is leased to or from the Company or any Company Subsidiary;
(i) powers of attorney from the Company or any Company Subsidiary;
(j) guaranties, suretyships or other contingent agreements of the Company or any Company Subsidiary;
(k) all agreements, contracts, commitments and arrangements between the Company or any Company Subsidiary and any Governmental Entity;
(l) any agreement, contract, commitment or arrangement relating to capital expenditures with respect to the Company and involving future payments which exceed $5,000 in any 12 month period;
(m) any agreement, contract, commitment or arrangement relating to the acquisition of assets of the Company, (other than in the Ordinary Course ordinary course of Business;
(viibusiness consistent with past practice) or any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Businessbusiness enterprise;
(viiin) any agreement relating to the incurrence, assumption, surety investment banking or guarantee of any Indebtedness other professional services agreement;
(excluding any agreement to guarantee lease payments of the Companyo) or to mortgaging, pledging or otherwise placing a Lien contracts (other than a Permitted Lienthose covered by clause (a) on any portion of the assets of the Company;
through (ixn) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(xabove) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which and the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, Subsidiaries will receive or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, pay in excess of $50,000 on an annual basis or in excess of $250,000 5,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by life of the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ noticecontract;
(xvp) any other material agreements, Contracts under and commitments whether or not entered into in the ordinary course of business; and
(q) all proposed arrangements or contracts of the Company or the Company Subsidiaries which the Company is reasonably expects to be near consummation and of a licensor or otherwise grants to type that if entered into would be a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not Contract described in clauses (ia) to through (xviio) above) . Neither the termination Company, any Company Subsidiary nor, to the Stockholders' and the Company's knowledge, any other party thereto, is in material breach of which would reasonably be expected to have or in material default under any Material Contract. Each such Material Contract is in full force and effect, and is a Company Material Adverse Effect.
(b) Each legal, valid and binding obligation of the Contracts set forth or required Company and/or the applicable Company Subsidiaries and, to be set forth on Section 3.12the Stockholders' and the Company's knowledge, each of the other parties thereto, enforceable in accordance with its terms.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 of Except as listed and described on Schedule 4.23, or any other Schedule annexed hereto, the Company Disclosure Schedules sets forth Seller is not a list of the following Contracts party to which the Company is a partyany:
(i) Contract (as defined below) with any partnershippresent or former shareholder, joint venturedirector, officer, employee or similar Contract that involves the sharing of profits or lossesconsultant (including, without limitation, any employment agreement);
(ii) any Contract with for the future purchase of, or payment for, supplies, products, insurance or financial instruments involving annual payment in excess of $50,000 or for the performance of services by a Significant Customer or Significant Supplierthird party involving annual payment in excess of $25,000;
(iii) any Labor AgreementContract to sell or supply products or to perform services involving receipt by the Seller of consideration in excess of $125,000 annually;
(iv) any employment, severance, incentive compensation, retention, change of control, lease under which the Seller is the lessor or consulting Contract with any current director, officer, lessee relating to either real or employee requiring an personal property and involving annual payment of cash compensation (excluding non-guaranteed sales commissions) payments by or to the Seller in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)10,000;
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting Contracts for the borrowing of money or restricting the ability a line of credit, or for a guarantee, pledge or undertaking of the Company to enter into or engage in indebtedness of any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classificationother person;
(vi) any Contract factoring agreement or agreement for the sale assignment of any of the assets of the Company, other than in the Ordinary Course of Businessreceivables;
(vii) Contract with respect to any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of BusinessRights;
(viii) Contract for any agreement relating to the incurrencecapital expenditure involving future payments, assumptionwhich, surety or guarantee together with future payments under all other existing Contracts for all capital projects are in excess of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company$50,000;
(ix) Contract limiting or restraining in any Contract under which respect the Company has made advances Seller from engaging or loans to competing in any other Person (which shall not include advances made to an employee lines of the Company in the Ordinary Course of Business)business or with any person;
(x) Contract requiring the Seller to loan money to any Contract relating to person in the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;future; or
(xi) any other Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
more than (xiia) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
five percent (xiii5%) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
Seller's revenues for 1996 or (xivb) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, expenses in excess of $50,000 on an annual basis 125,000 per item or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis aggregate. As used in the Ordinary Course of Business);
(xvi) Agreement, the term "Contract" includes any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectmortgage, indenture, agreement, license, contract, commitment or lease.
(b) Each Except as may be otherwise set forth on Schedule 4.23, with respect to each of the Contracts set forth listed on any Schedule to this Agreement, (i) such Contract is valid and enforceable against the Seller in accordance with its terms, except to the extent that such enforceability may be limited by applicable insolvency, bankruptcy, reorganization or required to be similar laws affecting the enforcement of creditors' rights generally and by general equity principles, (ii) the Seller is in compliance with the provisions thereof in all material respects, (iii) no other party is in default in the performance, observance or fulfillment of any material obligations, covenant or condition contained therein and (iv) no event has occurred which with or without the giving of notice or lapse of time, or both, would constitute a default thereunder by the Seller. Except as set forth on Section 3.12Schedule 4.23, the transactions as contemplated by this Agreement, will not (i) result in the automatic termination of any Contract listed on any Schedule to this Agreement; or (ii) result in the automatic acceleration or amendment of any of the terms of any such Contract; or (iii) give rise to a right in any party to unilaterally amend the terms of, or terminate, any such Contract.
Appears in 1 contract
Contracts and Commitments. (a) Except as contemplated by this Agreement or entered into subsequent to the date hereof in accordance with Section 3.12 5.1, neither Company, nor any of the Company Disclosure Schedules sets forth Subsidiaries, is a list party to or bound by any oral or written contract, obligation or commitment of any type in any of the following Contracts to which the Company is a partycategories:
(i) any partnershipagreements or arrangements that contain severance pay, joint ventureunderstandings with respect to tax arrangements, understandings with respect to expatriate benefits, or similar Contract that involves post-employment liabilities or obligations, sales-based bonus or other bonus arrangements, profit sharing, loss sharing, stock option, stock purchase, stock appreciation, deferred compensation or other plan or arrangement for the sharing benefit of profits its current or lossesformer directors, officers, employees or independent contractors;
(ii) agreements or plans under which benefits will be increased or accelerated by the occurrence of any Contract with a Significant Customer of the transactions contemplated by this Agreement, or Significant Supplierunder which the value of the benefits will be calculated on the basis of any of the transactions contemplated by this Agreement or any Ancillary Agreement;
(iii) agreements, contracts or commitments currently in force relating to the disposition or acquisition of assets, equity interests or a business other than in the ordinary course of business, or relating to an ownership interest in any Labor Agreementcorporation, partnership, joint venture or other business enterprise;
(iv) any employmentagreements, severancecontracts or commitments for the purchase of materials, incentive compensationsupplies or equipment, retention, change of control, under which the aggregate payments for the past 12 months exceeded $500,000 (or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (orwith respect to any operating facility, in the case of a severanceoperation or business operated by any Company Subsidiary), incentive compensation, retention which are with sole or change of control agreement, an aggregate payment in excess of $100,000)single source suppliers;
(v) guarantees or other agreements, contracts or commitments under which Company or any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company Subsidiaries is absolutely or contingently liable for (A) the performance of any other person, firm or corporation, (B) the whole or any part of the indebtedness or liabilities of any other person, firm or corporation, or (C) indemnification obligations to enter into employees, officers and directors or engage any such agreement as described in items (A) through (C) where such obligation has been guaranteed by any market or line affiliate of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classificationCompany;
(vi) any Contract for the sale management agreements, any partnership agreements and operating agreements of any of the assets of the Company, other than in the Ordinary Course of BusinessCompany and Company Subsidiaries;
(vii) any Contract acquisition agreements of Company and any Company Subsidiaries relating to the acquisition by the Company direct or indirect purchase of any operating business or the assets or capital stock of any other Person, other more than a ten percent interest in the Ordinary Course of Businessan entity that operates an ambulatory surgery center (and all material ancillary agreements relating thereto);
(viii) agreements providing for (A) indemnification obligations owed by Company or any agreement relating to the incurrenceCompany Subsidiary, assumption(B) purchase price adjustment or (C) other post-closing, surety post-execution or guarantee other contingent liabilities in connection with any (X) acquisition, disposition or issuance of any Indebtedness assets or securities, (excluding any agreement to guarantee lease payments Y) merger, consolidation or other business combination or (Z) series or group of related transactions or events of the Companytype specified in clauses (X) or to mortgaging, pledging or otherwise placing a Lien and (other than a Permitted Lien) on any portion of the assets of the CompanyY);
(ix) any Contract under which the loan agreements by Company has made advances and Company Subsidiaries with any employees of Company or loans to any other Person (which shall not include advances made to an employee employees of the Company in the Ordinary Course of Business)Subsidiaries;
(x) any Contract relating to powers of attorney authorizing the settlement, conciliation incurrence of a material obligation on the part of Company or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this AgreementSubsidiaries;
(xi) agreements, contracts or commitments which limit or restrict (A) where Company or any Contract with a Governmental Authority or pursuant to which of the Company participates Subsidiaries may conduct business, (B) the type or lines of business (current or future) in which they may engage, or (C) any program involving a Governmental Authorityacquisition of assets or stock (tangible or intangible) by Company or any of the Company Subsidiaries;
(xii) agreements, contracts or commitments with respect to a change of control of Company or any Contract pursuant to which of the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facilitySubsidiaries (other than Company Employee Benefit Plans);
(xiii) agreements, contracts or commitments for the borrowing or lending of money, or the availability of credit, or notes, bonds or similar instruments (except credit extended by Company or any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this AgreementCompany Subsidiaries to customers in the ordinary course of business and consistent with past practice);
(xiv) any hedging, option, derivative or other Contract that (A) involves a future similar transaction and any foreign exchange position or potential Liability or receivable, as contract for the case may be, in excess exchange of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ noticecurrency;
(xv) Contracts under which the any capital lease entered into by Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business)Company Subsidiary;
(xvi) any other agreement (not described in clauses (i) to agreements with a physician who owns an equity interest in, or refers patients to, one of the Company Subsidiaries that operates an ambulatory surgery center;
(xvii) aboveany management or similar agreement with any health care facility whether or not owned or operated by Company or any Company Subsidiary; and
(xviii) any consulting contract with any person or entity involving annual payments in excess of $50,000. Each contract, agreement or commitment of the termination type described in this Section 3.12 together with Real Property Leases (as defined below) is referred to herein as a “Company Contract.”
(b) Neither Company nor any of which would the Company Subsidiaries, nor to the knowledge of Company any other party to a Company Contract, has materially 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 have cause such a breach, violation or default under), any Company Contract.
(c) Each Company Contract is a valid, binding and enforceable obligation of Company or a Company Subsidiary, as applicable, and to the knowledge of Company, of the other party or parties thereto, in accordance with its terms, and in full force and effect, except where the failure to be valid, binding, enforceable and in full force and effect has not had, or could not reasonably be expected to have, a Company Material Adverse EffectEffect and to the extent enforcement may be limited by applicable bankruptcy, insolvency, moratorium or other laws affecting the enforcement of creditors’ rights governing or by general principles of equity.
(bd) Each Company has made available a true, accurate and complete copy of each Company Contract to Parent and a summary of any oral contract listed on Schedule 3.12 to the Contracts set forth or required to be set forth on Section 3.12Company Disclosure Statement.
Appears in 1 contract
Sources: Merger Agreement (United Surgical Partners International Inc)
Contracts and Commitments. (a) Section 3.12 The Disclosure Schedule lists (and the Company has provided true and correct copies to the Buyer of) each of the following items to which either the Company or the Subsidiary is a party or to which any of their properties or other assets are subject, except for any Contracts that may be terminated without liability or penalty on not more than 30 days' notice and any Contracts under which the executory obligation of the Company Disclosure Schedules sets forth or the Subsidiary involves an individual amount of less than $10,000 (unless a list of the following Contracts to which the Company different amount is a party:specified below):
(i) Contracts with any partnershippresent or former stockholder, joint venturedirector, officer, employee, partner or similar Contract that involves the sharing of profits or lossesconsultants;
(ii) Contracts for the future purchase of, or payment for, supplies or products, or for the performance of services by a third party, in excess of $20,000 in any Contract with a Significant Customer or Significant Supplierindividual case;
(iii) Contracts to sell or supply products or to perform services, in excess of $10,000 in any Labor Agreementindividual case;
(iv) notes, debentures, bonds, conditional sale agreements, equipment trust agreements, letter of credit agreements, reimbursement agreements, loan agreements or other Contracts for the borrowing or lending of money, agreements or arrangements for a line of credit or guarantee, pledge or undertaking in any employment, severance, incentive compensation, retention, change manner (including guarantees of control, lease obligations) whatsoever of the indebtedness of any other person or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)entity;
(v) any Contract with another Person concerning confidentiality or non-competition materially Contracts limiting or restricting the ability of restraining the Company to enter into or engage the Subsidiary from engaging or competing in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classificationany geographical area;
(vi) Contracts relating to any Contract for material license, franchise or distributorship, or copyright, or to any ideas, technical assistance or other know-how of or used by the sale of any of Company or the assets of the Company, other than in the Ordinary Course of BusinessSubsidiary;
(vii) any Contract relating to the acquisition by the Company of any operating business Collective bargaining agreements or the assets or capital stock of any other Person, other than in the Ordinary Course of Businesscontracts with labor unions;
(viii) any agreement Agreements relating to the incurrenceseverance arrangements, assumptionretirement benefits, surety deferred compensation or guarantee termination of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;employment; and
(ix) Contracts not made in the ordinary course of business that individually involve the payment or receipt of more than $10,000.
(b) Neither the Company, the Subsidiary nor, to the Company's knowledge, any Contract other party is in default under, nor to the Company's knowledge, has any event occurred that (with or without the giving of notice or lapse of time, or both) would constitute a default under any of the Contracts, which default could reasonably be expected to have a material adverse effect on the Business Condition. Neither the Company nor the Subsidiary has made advances received any communication from, or loans to given any communication to, any other Person (which shall not include advances made to an employee of party indicating that the Company in Company, the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation Subsidiary or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivableparty, as the case may be, in excess of $50,000 on an annual basis is currently or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Companylapse of time will be in default under any Contract, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would default could reasonably be expected to have a Company Material Adverse Effectmaterial adverse effect on the Business Condition.
(b) Each of the Contracts set forth or required to be set forth on Section 3.12
Appears in 1 contract
Contracts and Commitments. (ai) Section 3.12 3.1(s)(i) of the Company Disclosure Schedules sets forth Schedule contains a true, complete and correct list of the following Contracts to which the any Acquired Company is a party:party or by which any of its assets or properties is bound (each Contract so listed or required to be so listed, together with each IP Agreement, being a “Material Contract”):
(i) any partnership, joint venture, or similar Contract that involves the sharing of profits or losses;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(viiA) any Contract relating to the acquisition by the any Acquired Company of any assets of a substantial nature, operating business or the assets or capital stock of any other Person, the participation in a joint venture, partnership, strategic alliance or similar arrangement with any other than Person or the making of any other investment in the Ordinary Course of Businessany other Person;
(viiiB) any agreement relating to Contract (or group of related Contracts) for capital expenditures involving payments by any Acquired Company in excess of $500,000 over the incurrence, assumption, surety life of such Contract (or guarantee group of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Companyrelated Contracts);
(ixC) (1) any Contract (or group of related Contracts) pursuant to which any Acquired Company purchases, leases or licenses materials, supplies, equipment or other personal property or services that involves or would reasonably be expected to involve more than $500,000 over the life of such Contract (or group of related Contracts) and (2) any Contract with any Material Supplier;
(1) any Contract (or group of related Contracts) with any customer that involves or would reasonably be expected to involve more than $500,000 over the life of such Contract (or group of related Contracts) and (2) any Contract with any Material Customer;
(E) any Real Property Lease;
(F) any Contract under which any Acquired Company has created, incurred, assumed or guaranteed any Indebtedness, or under which any Acquired Company has imposed or become subject to any Encumbrance on any of its assets, tangible or intangible;
(G) any Contract containing non-disclosure or confidentiality obligations binding on any Acquired Company;
(H) any Contract that (1) limits the freedom of any Acquired Company to compete in any line of business or with any Person or in any area (including any agreement that contains any non-competition, non-interference or non-solicit obligations); (2) limits the freedom of any Acquired Company to solicit or hire any employee or independent contractor of any other Person; (3) grants to any Person any exclusive rights; (4) grants “most favored nation” or similar rights to any Person; or (5) otherwise prohibits or limits or would reasonably be expected to prohibit or limit any acquisition or transfer of any properties or assets of the Acquired Companies or the conduct of their business (including the Business) as currently conducted and as currently proposed to be conducted;
(I) any Contract with either Seller, Guarantor or any other Affiliate of the Acquired Companies or any Affiliate of either Seller;
(J) any collective bargaining agreement;
(K) any Contract for the employment of any individual or with any employee containing non-competition, non-interference or non-solicit obligations;
(L) any Contract with any independent contractor, consultant or other individual pursuant to which such individual acts as an independent contractor, consultant, or in a similar capacity for any Acquired Company;
(M) any Contract that provides for any severance benefits, retention payments, termination payments, change of control payments or similar Liabilities;
(N) any Contract under which any Acquired Company has made advances any advance or loans loan to any other Person (which shall not include advances made including to an employee any of the Company in the Ordinary Course of BusinessAcquired Companies’ equityholders, officers, directors, managers or employees);
(xO) any Contract relating to the settlement, conciliation under which a default or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will termination would have any material outstanding obligation after the date of this Agreementa Material Adverse Effect;
(xiP) any settlement Contract;
(Q) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;; and
(xiiR) any Contract pursuant to which the any Acquired Company is granted a lease in, a sublease in, or the right to use or occupy grants any Leased Real Property facility;Person power of attorney.
(xiiiii) Seller has delivered to Buyer a true, complete and correct copy of each written Material Contract (including all amendments, exhibits, schedules, statements of work and other material supplements thereto) and a written summary setting forth the material terms and conditions of each oral Material Contract. With respect to each Material Contract: (A) such Contract is legal, valid, binding, enforceable and in full force and effect; (B) neither the Acquired Companies, nor, to Seller’s Knowledge, any Contract other party thereto is in breach or default, and no event has occurred that requires with notice or lapse of time or both would constitute a consent to breach or otherwise contains a default or permit termination, modification or acceleration under such Contract; and (C) no party has repudiated any provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants threatened to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectterminate such Contract.
(b) Each of the Contracts set forth or required to be set forth on Section 3.12
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules Schedule 2.8(a) sets forth a complete and accurate list of the following Contracts each Contract described below to which the Company or any of its properties is party or is otherwise bound or subject (together with the Government Contracts and Government Bids set forth on Schedule 2.27(a), each, a party:
“Material Contract” and collectively, the “Material Contracts”): (i) any partnership, joint venture, or similar Contract that creates a partnership or a joint venture or arrangement that involves the a sharing of profits or losses;
with any other Person; (ii) any Contract that purports to or has the effect of limiting either the Company’s right to engage in, or compete with a Significant Customer or Significant Supplier;
any Person in, any business; (iii) any Labor Agreement;
Contract involving the incurrence by the Company of Liabilities (other than Liabilities to render services to customers in the ordinary course of business) in any one transaction or series of related transactions in excess of $25,000; (iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with creating any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions Lien on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
Shares; (vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xiiv) any Contract pursuant to which the Company has guaranteed any Indebtedness; (vi) any Contract not made in the ordinary course of business that is granted a lease inin excess of $25,000; (vii) any Contract granting any preferential rights to purchase or acquire any interest in any of Company’s assets, a sublease inproperty or rights or requiring consent of any party to the transfer and assignment of any such assets, property or the right to use or occupy any Leased Real Property facility;
rights; (xiiiviii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,most favored nation” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
“most favored customer” clause; and (xivix) any other Contract that (A) involves a future leases of properties or potential Liability or receivable, as the case may be, in excess assets of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty including any Contract creating a Lien on such property or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effect.assets. #34018857 v13
(b) Each Material Contract (i) is valid and binding on the Company and, to the Knowledge of the Contracts set forth Company, is valid and binding upon parties other than the Company in accordance with its terms and (ii) contains no provision or required covenant prohibiting or limiting the ability of the Company to be operate its Business.
(c) No party to any Material Contract (i) has provided any notice to the Company of its intent to terminate, or withdraw its participation in, any such Material Contract, (ii) has, to the Knowledge of the Company, threatened to terminate, or withdraw from participation in, any such Material Contract or (iii) is, to the Knowledge of the Company, in breach or default in any material respect under any provision thereof, and, to the Knowledge of the Company, no event or condition has occurred, whether with or without the passage of time or the giving of notice, or both, that would constitute such a breach or default.
(d) Except as set forth on Section 3.12Schedule 2.8(d) and Schedule 2.5(b),the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not (i) result in or give to any Person any right of termination, non-renewal, cancellation, withdrawal, acceleration or modification in or with respect to any Material Contract, (ii) result in or give to any Person any additional rights or entitlement to increased, additional, accelerated guaranteed or other change in payments under any Material Contract or (iii) result in the creation or imposition of any Actions upon the Company or any Lien upon any of the property or assets of the Company under the terms of any Material Contract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Vishay Precision Group, Inc.)
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules sets Set forth on Schedule 4.13 is a complete list of the following Contracts each written or oral agreement or instrument to which the Company or any Subsidiary is a party, of the type or nature described below:
(i) any partnershipagreement or contract not made in the ordinary course of business, joint venture, or similar Contract that involves other than the sharing of profits or lossesTransaction Documents;
(ii) consulting agreement, independent contractor agreement, bonus agreement, commission agreement or contract for the employment of any Contract with employee or other person on a Significant Customer full-time, part-time or Significant Supplierconsulting basis;
(iii) contract or collective bargaining agreement with any Labor Agreementlabor union;
(iv) any employment, severance, incentive compensation, retention, change contract for the purchase or sale of control, Real Property or consulting Contract with any current director, officer, capital or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) fixed assets in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)25,000;
(v) any Contract with another Person concerning confidentiality agreement or non-competition materially limiting contract for the purchase of materials, supplies, equipment or restricting the ability services in excess of normal requirements, in each case, which require or could be reasonably expected to require expenditures by the Company to enter into or engage any Subsidiary in any market or line excess of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification$25,000 per annum;
(vi) agreement or contract with a cruise line or other business entity designed to introduce customers to the Company's stores;
(vii) agreement or contract that is (A) is with a significant customer or supplier, (B) is not terminable upon notice of 30 days or less without cost or liability resulting from such termination, or (C) any Contract distribution agreement with a merchandise supplier;
(viii) agreement, mortgage, indenture, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing or lending of money or extension of credit or providing for the sale of mortgaging or pledging of, or otherwise placing a lien, security interest or encumbrance on, any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) Company or any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the CompanySubsidiary;
(ix) option, warrant or other contract for the purchase of any Contract under which debt or equity security of any corporation or entity, or for the Company has made advances issuance, sale or loans to registration for sale of any debt or equity security, other Person (which shall not include advances made to an employee than the Registration Rights Agreement, or for the conversion of any obligation, instrument or security into debt or equity securities, of the Company in the Ordinary Course of Business)or any Subsidiary;
(x) guaranty or indemnity of or with respect to any Contract relating to obligation for borrowed money, credit or otherwise, excluding endorsements made for collection in the settlement, conciliation or similar agreement with any Governmental Authority ordinary course of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreementbusiness;
(xi) settlement agreement of any Contract with a Governmental Authority administrative or pursuant to which judicial proceedings within the Company participates in any program involving a Governmental Authoritypast five years;
(xii) any Contract pursuant to contracts and other agreements containing covenants under which the Company, any Subsidiary, any key employee of the Company is granted or any Subsidiary may not compete in a lease inline of business, with a sublease inparticular person or entity (other than the Company or any Subsidiary), or the right to use or occupy any Leased Real Property facilityin a particular geographic area;
(xiii) license agreement for any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;intellectual property, including trademarks, trade names and service marks; or
(xiv) any other Contract that (A) involves a future contract or potential Liability agreement which is material to the business, business prospects or receivable, as the case may be, in excess assets of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would have or could be reasonably be expected to have a Company Material Adverse EffectEffect (other than Property Leases and Title Documents).
(b) Each Neither the Company nor any Subsidiary is in breach of or in default under any agreement or instrument listed in Schedule 4.13 (collectively, the "Contracts"), and no event has occurred that, with the giving of notice or lapse of time or both, would constitute such a breach or default by the Company, any Subsidiary or any other party thereto, except, in each case, any such breach or default which would not give rise to a right to terminate or alter the material terms of any such Contract. True and complete copies of the Contracts set forth or required have been delivered to be set forth on Section 3.12the Buyer.
Appears in 1 contract
Contracts and Commitments. (aExcept as set forth on Schedules 4.10(b) Section 3.12 of or 4.12, neither the Company Disclosure Schedules sets forth a list nor any Subsidiary of the following Contracts to which the Company is a party:party to the following types of agreements (written or oral):
(ia) any partnership, partnership agreement or joint ventureventure agreement which requires a payment, or similar Contract that involves the sharing delivery of profits assets or lossesservices, in excess of One Hundred Thousand Dollars ($100,000) in any 12-month period;
(iib) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract agreement with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company or any Subsidiary of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixingagreements with exclusivity, “most favored nation”, market customer” pricing or customer sharing, exclusivity or market classificationother similar provisions;
(vic) any Contract agreements for the sale of any of the assets of the Company or any of its Subsidiaries other than in the ordinary course of business or for the grant to any person of any preferential rights to purchase any of its assets;
(d) any lease, sub-lease, license, sub-license or other agreement with respect to real property;
(e) any agreement of the Company or any of its Subsidiaries with any Affiliate of the Company;
(f) any agreement of the Company or any of its Subsidiaries relating to the acquisition, issuance, voting, registration, sale or transfer, preemptive rights, participation rights, rights of first refusal, repurchase or redemption rights of or with respect to any securities of the Company, other than those in connection with the Ordinary Course of BusinessPlan;
(viig) any Contract relating material agreement with respect to the acquisition by intellectual property of the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Businessand its Subsidiaries;
(viiih) any collective bargaining or union agreement to which the Company or any of its Subsidiaries is bound;
(i) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Companyindebtedness;
(ixj) any Contract under which agreement relating to interconnection, reciprocal compensation, co-location, cable TV programming and retransmission/must carry, conduits, pole attachments and rights of way with respect to the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);same; or
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvik) any other agreement (not described in clauses (i) to (xvii) aboveor group of related agreements) the termination performance of which will require aggregate payments, or delivery of assets or services, to or from the Company or any of its Subsidiaries in excess of One Hundred Thousand Dollars ($100,000) in any 12-month period. Each of the contracts set forth on Schedule 4.12 (the “Material Contracts”) is in full force and effect and constitutes a legal, valid and binding obligation of the Company and/or its Subsidiaries, as applicable, enforceable against them in accordance with its terms, except as such enforceability may be limited by the General Enforceability Exceptions. The Company or one of its Subsidiaries, as applicable, has performed all of their material obligations (except those that have not yet become due) under, and is not in violation or breach of or default under, any of the Material Contracts, except for such non-performance, violation or breach which would not have or reasonably be expected to have a Company Material Adverse Effect.
(b) Each . The Company has paid in full all amounts owed by the Company in connection with the Material Contracts, regardless of whether or not such amounts have been invoiced to the Company. To the Company’s knowledge, each of the other parties to each of the Material Contracts set forth has performed all of their material obligations (except those that have not yet become due) under, and is not in violation or required breach of or default under, such Material Contracts, except for such non-performance, violations, breaches or defaults which would not have or reasonably be expected to be have a Company Material Adverse Effect. Except as set forth on Section 3.12Schedule 4.12, the execution of this Agreement and the consummation of the transactions contemplated hereby will not conflict with or cause a breach of any of the Material Contracts, and no notice to or approval or consent of any other party to any of the Material Contracts is required in order for those Material Contracts to continue in full force and effect without breach, default, acceleration or any change in terms after the consummation of the Merger.
Appears in 1 contract
Sources: Merger Agreement (Knology Inc)
Contracts and Commitments. (a) Section 3.12 As of the Company date of execution of this Agreement, Schedule 4.22(a) of the Signing Disclosure Schedules sets forth Schedule, and as of the Closing Date, Schedule 4.22(a) of the Closing Disclosure Schedule, contains a complete and accurate list of all agreements, contracts, licenses, instruments, obligations and commitments of any kind, whether written or oral, including all indentures, loans, mortgages leases, notes, installment obligations (including finance leases), consulting agreements, services agreements and agreements for the following Contracts sale of goods or provision of services, any agreement to which acquire any debt obligations of others, power of attorney or any obligations or liabilities (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the Company is a party:
(i) obligation of any other Person, corporation, partnership, joint venture, association, organization or similar Contract that involves other entity (collectively, the sharing "Contracts") for which any of profits the following apply: (i) to which the Company or losses;
any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their properties or assets may be bound or (ii) any Contract entered into by or on behalf, at the 45 <PAGE> direction, with a Significant Customer the consent or Significant Supplier;
under the authority of (iiiA) any Labor Agreement;
past or present Additional KSO Employee, (ivB) the Company, any employment, severance, incentive compensation, retention, change of control, its Subsidiaries or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets Selling Shareholders, (C) any past or present officer, director, commissioner or employee of the Company, other than in any of its Subsidiaries or any of the Ordinary Course of Business;
Selling Shareholders or (viiD) any Contract relating to the acquisition by the Company past or present officer, director, commissioner or employee of any operating business or the assets or capital stock Affiliate of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant Selling Shareholder to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with KSO Unit is a Governmental Authority party or pursuant to by which the Company participates in KSO Unit or any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, of its properties or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case assets may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectbound.
(b) Each Except for the KSO Agreement, each of the Contracts set forth is a legal, valid, binding and enforceable obligation of the parties thereto, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization or required other similar laws affecting the enforcement of Purchaser's rights generally and (ii) general equitable principles. Except for the KSO Agreement, neither the Company nor any of its Subsidiaries is in default under or in violation of, nor has any event occurred that with the giving of notice or lapse of time or both would constitute a default or event of default under, nor is there any valid basis for any claim of default under or violation of, any Contract. To the Knowledge of the Selling Shareholders, the KSO Unit is not in default under or in violation of any Contract and no event has occurred that with the giving of notice or lapse of time or both would constitute a default or event of default under, and there is no basis for any claim of default under or violation of, any Contract. To the Knowledge of the Selling Shareholders, there has been no default, violation or event that with the giving of notice or lapse of time or both would constitute a default or event of default on the part of any other party to be set forth on Section 3.12a Contract except for the KSO Agreement. As of the Closing Date, each Contract then in effect was entered into in the ordinary course of business consistent with past practice. 46 <PAGE> Section
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules Schedule 3.14(a) sets forth a true, correct and complete list (by reference to the applicable subsection hereof) of the following currently effective Contracts and other agreements, whether written or oral, to which any of the Company Acquired Companies is a partyparty or to which an Acquired Company has continuing material obligations or material rights:
(i) Contracts for the lease, sublease, license, use or occupancy of real property to or from any partnership, joint venture, or similar Contract that involves the sharing of profits or lossesPerson;
(ii) Contracts for the lease of personal property to or from any Contract with a Significant Customer or Significant SupplierPerson providing for lease payments after the date hereof in excess of $100,000.00 per year;
(iii) Contracts (or group of related agreements with the same Person), the performance of which will involve or could result in payments by or to any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) the Acquired Companies after the date hereof in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company500,000.00, other than purchase orders entered into in the Ordinary Course of Business;
(viiiv) Contracts concerning a partnership, strategic alliance, collaboration or joint venture arrangement with any Contract relating to the acquisition by the Company of any operating business Person, or the assets or sharing of profits;
(v) Contracts involving a commitment to make any capital stock expenditure after the date hereof in excess of any other Person$100,000.00, other than except in the Ordinary Course of Business;
(vi) employment, retention, personal services, consulting, independent contractor, severance, bonus, golden parachute or similar Contracts between an Acquired Company and any Employee or other individual service provider (or former employee or individual service provider, to the extent of ongoing liability) (A) who or which is entitled to compensation thereunder in excess of $100,000.00 per year or (B) that cannot be terminated upon notice without further payment, liability or obligation;
(vii) Contracts providing for severance or termination payments upon termination of employment or service or any payments related to a change in control of any of the Acquired Companies or, with respect to any Employees, Seller;
(viii) Contracts under which an Acquired Company has loaned any agreement relating amount to the incurrenceany Person, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lienexpense advances in the Ordinary Course of Business to any of its directors, officers or Employees or loans in the Ordinary Course of Business to Employees under the Acquired Companies’ 401(k) on any portion of plans in accordance with the assets of the Companyterms thereof;
(ix) any Contract under which the Company has made advances Contracts with a Significant Customer or loans to any other Person Significant Supplier (which shall not include advances made to an employee of the Company except for purchase orders in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement Contracts with any Governmental Authority of labor union or association representing any claim Employee, including any collective bargaining Contract, works council or action other labor or pursuant to which the Company will have any material outstanding obligation after the date of this union Contract or Labor Agreement;
(xi) Contracts providing for the settlement of any Contract with a Governmental Authority or pursuant to Legal Proceeding which the Company participates in any program involving a Governmental Authorityhave outstanding obligations;
(xii) Contracts with any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facilityAuthority;
(xiii) any each Contract that requires a consent to or otherwise contains a provision relating to a “change the acquisition or disposition of control,” any Person, material assets or that would give rise business, including any current or former Subsidiary, division or business of an Acquired Company (whether by merger, consolidation or other business combination, sale of Equity Securities, sale of assets or otherwise) as to any acceleration which an Acquired Company has continuing material obligations or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreementmaterial rights;
(xiv) any other Contract that (A) involves a materially prohibiting or restricting an Acquired Company or any of its present or future Affiliates from competing or potential Liability engaging in any business activity or receivable, as geographical area or otherwise materially restricting it from carrying on any business activity anywhere in the case may be, in excess of $50,000 on an annual basis world or in excess of $250,000 over the current Contract term soliciting for employment or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty engagement or further payment and without more than thirty (30) days’ noticeemploying or engaging any Person;
(xv) Contracts any Contract that requires an Acquired Company to deal exclusively with or grant exclusive rights or rights of first refusal or negotiation or similar rights to any customer, vendor, supplier, contractor or other party or that contains a most-favored-nation, best pricing or other similar term or provision by which another party to such Contract is or could become entitled to any benefit, right or privilege which, under the terms of such Contract, must be at least as favorable to such party as those offered to another Person;
(xvi) each Contract that contains any fixed or indexed pricing or provisions regarding minimum volumes, volume discounts, or rebates;
(xvii) each Contract with a Related Party;
(xviii) each Contract with any Person providing any sales, marketing, business generation, brokering, referral or related services to any Acquired Company after the date hereof in excess of $10,000.00 per year;
(xix) any Contract evidencing any Indebtedness, including, without limitation, (A) any guaranty, promissory note or letter of credit issued or posted by an Acquired Company and/or (B) any Contract providing for the creation of any Lien upon any of the properties or assets of an Acquired Company;
(xx) each Contract pursuant to which the an Acquired Company is a licensor granted or otherwise grants receives a license, covenant not to a third party any rights sue, or other similar right to use any Intellectual Property owned by any other Person (other than Intellectual Property licensed to customers on a shrink-wrap, click-wrap and other non-exclusive basis licenses or subscriptions for software that is commercially available to the public on standard term with an annual fee or replacement cost of $50,000.00);
(xxi) each Contract pursuant to which an Acquired Company has granted to any Person any license or other right related to any Intellectual Property owned or purported to be owned by an Acquired Company (other than non-exclusive trademark licenses granted to distributors in the Ordinary Course of Business);; and
(xvixxii) any each other agreement (Contract not described made in clauses (i) to (xvii) above) the termination ordinary course of which would reasonably be expected to have a Company Material Adverse Effectbusiness consistent with past practice or that is otherwise material.
(b) Each Complete and accurate copies of the Contracts set forth listed or required to be listed on Schedule 3.14(a) (the “Material Contracts”), together with all amendments and modifications thereto, have previously been made available to the Purchaser, or, to the extent any of such Contracts are oral, a written description of the material terms thereof have previously been made available to the Purchaser. Each Material Contract is in full force and effect, is valid, binding and enforceable in accordance with its terms, except as such enforceability may be limited by the effect of the Bankruptcy and Equity Exception, and is not subject to any claims, charges, set-offs or defenses.
(c) Except as set forth on Section 3.12Schedule 3.14(c), no Acquired Company is in material breach or default under any Material Contract and, to the Knowledge of the Company, no other Person that is party to any Material Contract with any Acquired Company is in material breach or default under such Material Contract. Since the Look-Back Date, no event has occurred which with the giving of notice or the passage of time or both would constitute a breach or default by any Acquired Company of, or which would give rise to any right of notice, modification, acceleration, payment, cancellation or termination of or by another party under, or in any manner release any party thereto from any obligation under, any Material Contract. To the Knowledge of the Company, no event has occurred which with the giving of notice or the passage of time or both would constitute a breach or default by any other party, or which would give rise to any right of notice, modification, acceleration, payment, cancellation or termination of or by any Acquired Company under, or in any manner release any party thereto from any obligation under, any Material Contract. In the past twenty-four (24) months, no Acquired Company has received any written, or to the Knowledge of the Company, other, notice regarding any actual or alleged violation or breach of, or default under any Material Contract. In the past twenty-four (24) months, no Acquired Company has received any written, or to the Knowledge of the Company, other, notice, nor does any Acquired Company have any Knowledge that, a counterparty to any Material Contract is terminating, not renewing, modifying, repudiating or rescinding, or intends to terminate, not renew, modify, repudiate or rescind such Material Contract.
(d) No Acquired Company has represented to any other Person that it is, or has at any time derived any revenue from any business or any Contracts awarded due to any designation as, or by virtue of meeting any Person’s definition of, “female owned,” “minority owned,” “military veteran owned” or “small business” or any similar designation or other set-aside or preferential program.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Ceco Environmental Corp)
Contracts and Commitments. (a) Section 3.12 Except as set forth on Schedule 3.14(a) of the Company Disclosure Schedules sets forth a list of the following Contracts to which Schedule, the Company is not a partyparty to or bound by any of the following:
(i) any partnership, joint venture, or similar Contract that involves the sharing of profits provides for post-employment or lossespost-consulting liabilities or obligations, including severance pay;
(ii) any Contract under which payments or obligations will be increased, accelerated or vested by the occurrence (whether alone or in conjunction with any other event) of any of the transactions contemplated by this Agreement, including the Merger, or under which the value of the payments or obligations will be calculated on the basis of any of the transactions contemplated by this Agreement, including the Merger, whether pursuant to a Significant Customer change in control or Significant Supplierotherwise;
(iii) any Labor AgreementContract currently in force relating to the disposition or acquisition of assets where the fair market value of such assets exceeds $100,000, in each case other than inventory sold in the ordinary course of business;
(iv) any employmentContract relating to an ownership interest in any corporation, severancepartnership, incentive compensation, retention, change of control, joint venture or consulting Contract with any current director, officer, other business enterprise or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)Person;
(v) any Contract with another Person concerning confidentiality for the purchase of materials, supplies, equipment or non-competition materially limiting services, under which the aggregate payments made to one party or restricting group of related parties during the ability of past twelve (12) months exceeded, or for the Company following twelve (12) months is expected to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixingexceed, “most favored nation”, market or customer sharing, exclusivity or market classification$100,000;
(vi) any Contract for relating to the sale guarantee (whether absolute or contingent) by the Company of (A) the performance of any other Person (other than the Company) or (B) the whole or any part of the assets indebtedness or liabilities of any other Person (other than the Company, other than in the Ordinary Course of Business);
(vii) any Contract relating to the acquisition indemnification by the Company of any operating business its officers, directors, managers or the assets or capital stock of any other Person, other than in the Ordinary Course of Businessagents;
(viii) any agreement relating to the incurrence, assumption, surety material Contract of indemnification or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Companyguaranty;
(ix) any Contract under which power of attorney authorizing the Company has made advances or loans to any other Person (which shall not include advances made to incurrence of an employee obligation on the part of the Company in the Ordinary Course of Business)Company;
(x) any Contract relating to which limits or restricts (A) where the settlementCompany may conduct business, conciliation (B) the type or similar agreement with any Governmental Authority lines of any claim business (current or action or pursuant to future) in which the Company will have may engage or (C) any material outstanding obligation after acquisition of assets or stock (tangible or intangible) by the date of this AgreementCompany;
(xi) any Contract with a Governmental Authority or pursuant to under which the Company participates in any program involving a Governmental Authorityaggregate payments or receipts for the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, $100,000;
(xii) any Contract pursuant to which for the Company is granted a lease in, a sublease inborrowing or lending of money, or the right availability of credit (except credit extended by the Company to use or occupy any Leased Real Property facilitycustomers in the ordinary course of business and consistent with past practice);
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change any hedging, option (other than options granted to service providers in connection with the performance of control,” services), derivative or that would give rise to other similar transaction and any acceleration foreign exchange position or additional rights or obligations under such Contract or prohibit or delay contract for the consummation exchange of the transaction contemplated by this Agreementcurrency;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ noticecollective bargaining agreements;
(xv) Contracts under which any Contract relating to the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in employment of individuals who serve as officers of the Ordinary Course of Business);Company; or
(xvi) any other agreement (not Contract that would otherwise be required to be filed as an exhibit to a periodic report under the Exchange Act, as provided by Item 601 of Regulation S-K promulgated under the Exchange Act. Each Contract of the type described in clauses this Section 3.14(a) and in existence as of the date hereof is referred to herein as a “Company Contract”.
(ib) An accurate and complete copy of each Company Contract (including all amendments thereto) has been made available to Parent.
(xviic) above) Neither the termination Company nor, to the knowledge of which the Company, any other party to a Company Contract, is in material breach, violation or default under, or has received written notice that it has breached, violated or defaulted under (nor, to the knowledge of the Company, does there exist any condition under which, with the passage of time or the giving of notice or both, would reasonably be expected to have cause such a breach, violation or default under), any Company Material Adverse EffectContract material to the Company’s operation of its business.
(bd) Each Company Contract is a valid, binding and enforceable obligation of the Contracts set forth Company and, to the knowledge of the Company, of the other party or required parties thereto, in accordance with its terms and is in full force and effect, in each case except to the extent enforcement may be set forth on Section 3.12limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally or by general equitable principles or by principles of good faith and fair dealing (regardless of whether enforcement is sought in equity or at law).
Appears in 1 contract
Sources: Merger Agreement (Stemcells Inc)
Contracts and Commitments. (a) Except as set forth in Section 3.12 2.7 of the Company Disclosure Schedules sets forth a list of the following Contracts to which Schedule, the Company is not a partyparty to:
(i) any partnershipcontract, joint ventureagreement, purchase order (other than purchase orders in the ordinary course of business) or similar Contract that involves other commitment for the sharing purchase, sale or provision to or by the Company of profits goods, property or lossesservices having an individual value in excess of $10,000 or an aggregate value in excess of $100,000;
(ii) any Contract pension, profit sharing, stock option, employee stock purchase or other plan providing for deferred compensation or other employee benefit plan, or any contract with a Significant Customer or Significant Supplierany labor union;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, agreement or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract indenture relating to the acquisition by the Company borrowing of any operating business money or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) lien on any portion asset or group of the assets of the Company;
(ixiv) any Contract lease or agreement under which it is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of personal property under which the Company has made advances or loans to any other Person (which shall aggregate annual rental payments do not include advances made to an employee of the Company in the Ordinary Course of Business)exceed $5,000;
(xv) any Contract relating lease or agreement under which it is lessor of or permits any third party to the settlementhold or operate any property, conciliation real or similar agreement with any Governmental Authority of any claim personal, owned or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreementcontrolled by it;
(xivi) any Contract with a Governmental Authority or pursuant to which agreements providing for the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant services of an independent contractor to which the Company is granted a lease in, a sublease in, party or the right to use or occupy any Leased Real Property facilityby which it is bound;
(xiiivii) any Contract that requires a consent to oral or otherwise contains a provision relating to a “change written direct or indirect guarantee of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;obligation; or
(xivviii) any other Contract that (A) involves a future or potential Liability or receivableadditional material contracts, as the case may becommitments, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year agreements, arrangements, writings, guarantees, leases and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under licenses to which the Company is a licensor party or otherwise grants to a third party by which the Company or any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis of its property is bound having an individual value in the Ordinary Course excess of Business);
(xvi) any other agreement (not described $10,000 or an aggregate value in clauses (i) to (xvii) above) the termination excess of which would reasonably be expected to have a Company Material Adverse Effect.
(b) $100,000. Each of the Contracts set forth or contracts, agreements, leases, licenses and commitments required to be set forth on listed in Section 3.122.7 of the Disclosure Schedule (the “Contracts”) is valid and binding, enforceable in accordance with its respective terms, in full force and effect and, at Closing, will remain in full force and effect without the consent, approval or act of, or the making of any filing with, any other person. To the Shareholder’s knowledge, none of the Contracts were entered into with any intent or for any purpose prohibited by law. True and complete copies of all of the Contracts (together with any and all amendments thereto) have been delivered to GlobalSecure and initialed by the Company’s Secretary and identified with a reference to this Section of this Agreement. The Company has performed all obligations required to be performed by it and is not in default under, or in breach of, or in receipt of any claim of default or breach under, any of the Contracts and no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance under any such Contract neither the Company nor the Shareholder has any knowledge of any breach or anticipated breach by the other parties to any such Contract and to the Shareholder’s knowledge the Company is not a party to any Contract for the purchase of goods or services at a rate currently materially above market prices.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules The Contract List sets forth a list of the following Contracts each and every contract, agreement, arrangement, commitment or binding understanding to which the Company is a party:party which would reasonably be described by any of the following (each, a “Material Contract”):
(i) any partnershipemployment, joint venturecontractor or consulting Contract with an employee or individual consultant, contractor or salesperson, or similar consulting, services or sales Contract that involves with a firm or other organization in excess of $50,000 per annum individually or $150,000 per annum in the sharing of profits or lossesaggregate;
(ii) any Contract with a Significant Customer Contract, Company Employee Plan or Significant SupplierPlan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement (either alone or upon the occurrence of any additional subsequent events) or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) any Labor Agreementfidelity or surety bond or completion bond in excess of $50,000;
(iv) any employment, severance, incentive compensation, retention, change lease of control, personal property or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) equipment having a value in excess of $100,000 (or, 50,000 individually or $150,000 in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)aggregate;
(v) any Contract of indemnification or guaranty, but excluding Contracts of indemnification or guaranty with another Person concerning confidentiality or non-competition materially limiting or restricting respect to the ability infringement by the Company products of the Company to enter material Intellectual Property Rights of third parties that are contained in the Company’s written agreements with its customers that have been entered into or engage in any market or line the ordinary course of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or consistent with past practices substantially in the Company’s standard form of customer sharing, exclusivity or market classificationagreement;
(vi) any Contract for the sale relating to capital expenditures and involving future payments in excess of any of the assets of the Company, other than $50,000 individually or $150,000 in the Ordinary Course of Businessaggregate;
(vii) any Contract relating to the disposition or acquisition by the Company of any operating business or the assets or capital stock any interest in any business enterprise outside the ordinary course of any other Person, other than in the Ordinary Course of Businessbusiness consistent with past practices;
(viii) any agreement mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the incurrence, assumption, surety borrowing of money or guarantee extension of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Companycredit;
(ix) any purchase order or Contract under which obligating the Company has made advances to purchase materials or loans to any other Person (which shall not include advances made to an employee services at a cost in excess of the Company $50,000 individually or $150,000 in the Ordinary Course of Business)aggregate;
(x) any Contract relating to containing covenants or other obligations granting or containing any current or future commitments regarding exclusive rights, non-competition, “most favoured nations,” restriction on the settlementoperation or scope of its businesses or operations, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreementterms;
(xi) any Contract providing a customer with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authorityrefund rights;
(xii) any dealer, distribution, marketing, development or joint venture Contract pursuant to which requires payment by the Company is granted a lease in, a sublease in, in excess of $50,000 individually or $150,000 in the right to use or occupy any Leased Real Property facilityaggregate;
(xiii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other Contract that requires a consent to for use or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation distribution of the transaction contemplated by this Agreementproducts, Technology or services of the Company in excess of $50,000;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under to which the Company is a licensor party with respect to any Technology or otherwise grants to a third party any rights to use any Intellectual Property Rights, including without limitation any in-bound licenses, out-bound licenses and cross-licenses, but excluding (other than Intellectual Property licensed i) with respect to customers on a out-bound licenses (1) non-disclosure agreements and (2) non-exclusive basis out-bound licenses with respect to the provision of Company’s products to end-users (in each case, pursuant to written agreements that have been entered into in the Ordinary Course ordinary course of Businessbusiness consistent with past practices);, and (ii) with respect to in-bound licenses, (1) in-bound licenses for “freeware,” “free software,” “open source software” licensed to the Company and listed in Section 2.14(u) of this Agreement and (2) commercially available off-the-shelf “shrink wrap” or “click wrap” software and the like that is generally available on nondiscriminatory pricing terms for a cost of not more than $50,000 for a perpetual license for a single user or workstation or $150,000 in the aggregate for all users and workstations; or
(xvixv) any other agreement Contract that involves $50,000 individually or $150,000 in the aggregate or more and is not cancelable by the Company without penalty within ninety (not described in clauses (i90) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectdays.
(b) Each Except as set forth in Section 2.15(b) of the Contracts Disclosure Schedule The Company is in substantial compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contract (where such default has not been waived), nor does the Company have knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Except as set forth or required in Section 2.15(b) of the Disclosure Schedule and to be set forth on Section 3.12the knowledge of the Company, each Material Contract is in full force and effect, and the Company is not subject to any material default thereunder nor is any party obligated to the Company pursuant to any such Material Contract subject to any material default thereunder (where such default has not been waived).
Appears in 1 contract
Sources: Arrangement Agreement (Nuance Communications, Inc.)
Contracts and Commitments. (a) Section 3.12 of Except as set forth on the Contracts Schedule, neither the Company Disclosure Schedules sets forth a list of the following Contracts to which the nor any Company Subsidiary is a partyparty to any:
(i) Contracts with any partnership, joint venture, labor union or similar Contract that involves association representing any employees of the sharing of profits Company or lossesany Company Subsidiary (including any collective bargaining agreement);
(ii) any Contract with a Significant Customer bonus, pension, profit sharing, retirement or Significant Supplierother form of deferred compensation plan, other than as set forth in the Disclosure Schedules or in Section 4.13 relating thereto;
(iii) any Labor Agreementstock purchase, stock option phantom stock, stock appreciation or similar plan or Contract;
(iv) Contract (A) for the employment of any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, individual employee or employee requiring an annual payment of cash other person on a full time, part-time, consulting or other basis providing for base compensation (excluding non-guaranteed sales commissions) in excess of $100,000 per annum, (orB) for the employment of any officer, in individual employee or other person on a full time, part-time, consulting or other basis providing for base compensation of $100,000 per annum or less that is not at-will and terminable without penalty or other payment, and (C) with any officer, individual employee or other person retained to provide services to the case Company or any Company Subsidiary providing for the payment of a cash or other compensation or benefits upon the consummation of the transactions contemplated by the Company Documents or severance, incentive compensation, retention salary continuation or change of control agreement, an aggregate payment in excess of $100,000)other post-employment benefits;
(v) any Contract with another Person concerning confidentiality agreement, indenture or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company borrowing of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the CompanyCompany or any Company Subsidiary;
(vi) guaranty of any obligation for borrowed money or other material guaranty;
(vii) lease, agreement or other Contract under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $25,000;
(viii) lease, agreement of other Contract under which it is lessor of or permits any third party to hold or operate any property, real or personal, for which the annual rental exceeds $50,000;
(ix) any Contract under which prohibits the Company has made advances or loans to any other Person (which shall not include advances made to an employee Company Subsidiary from freely engaging in business anywhere in the world, limiting the ability of the Company or any Company Subsidiary to solicit or hire or engage in the Ordinary Course transactions with employees, suppliers or customers of Business)another Person, granting exclusivity (including with respect to any product or service) in favor of another Person or containing any “most favored nation” provision or rights of first refusal;
(x) any Contract (A) relating to any royalty arrangements (involving consideration in excess of $25,000 per annum) or the settlementassignment, conciliation indemnification or similar other agreement with respect to any Governmental Authority Intellectual Property, including the licensing of any claim or action or pursuant to which Intellectual Property by the Company will have or any Company Subsidiary to a third party or by a third party to the Company or any Company Subsidiary, or (B) affecting the Company’s or any Company Subsidiary’s ability to use or disclose any material outstanding obligation after Intellectual Property, in each case, other than (1) licenses for commercially available, off the date shelf software used by the Company or any Company Subsidiary or (2) agreements entered into by the Company or any Company Subsidiary with customers in the ordinary course of this Agreementbusiness, the form of such agreement(s) has been provided to the Purchaser;
(xi) Contract (other than purchase orders and the related terms and conditions) with any Contract with a Governmental Authority customer generating revenue of $350,000 or pursuant to which the Company participates in any program involving a Governmental Authoritymore per annum;
(xii) Contract (other than purchase orders and the related terms and conditions) with any Contract pursuant to which the Company is granted a lease in, a sublease in, supplier requiring annual expenditures of $100,000 or the right to use or occupy any Leased Real Property facilitymore;
(xiii) Contract with any Contract that requires a consent strategic partner or collaborator which is material to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation business of the transaction contemplated by this AgreementCompany as presently conducted or any joint venture, profit-sharing or partnership Contract;
(xiv) Contract with a Governmental Body;
(xv) Contract relating to the acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) of any other Contract that (A) involves a future Person or potential Liability material line of business or receivableany assets of the Company or any Company Subsidiary for consideration, as individually or in the case may beaggregate, in excess of $50,000 on an annual basis 100,000 entered into during the past three (3) years, or which the Company or any Company Subsidiary has a continuing obligation under, or the future acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) of any Person or material line of business or any assets of the Company or any Company Subsidiary for consideration, individually or in the aggregate, in excess of $250,000 over 100,000; Notwithstanding the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Companyforegoing, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not no contract described in clauses (i) - (xv) above will be required to be listed on the Contracts Schedule if such contract will: (A) expire or be terminated, with the Purchaser’s written consent, in accordance with its terms at or prior to the Closing; or (B) be terminated and fully discharged at or prior to the Closing in connection with the consummation of the transactions contemplated by this Agreement.
(xvi) Contract with sales brokers and sales representatives;
(xvii) aboveContract involving any settlement or resolution of any actual or threatened legal action; and
(xviii) Contract not required to be listed elsewhere in this Section 4.09(a) involving or reasonably expected to involve payments by or to the Company in excess of $250,000 per annum, that may not be terminated by the Company upon less than thirty (30) days prior notice or the termination of which would reasonably be expected to have constitute a Company Material Adverse Effect.Change; and
(b) Each of the Contracts set forth listed on the Contracts Schedule is in full force and effect, and is the legal, valid and binding obligation of the Company or required the Company Subsidiary which is party thereto and, to be set forth the Company’s Knowledge, the other party or parties thereto. Neither the Company nor any Company Subsidiary (as applicable), and, to the Company’s Knowledge, the other party or parties thereto, is in material default under any Contract listed on Section 3.12the Contracts Schedule. To the Company’s Knowledge, no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or default on the part of the Company, or any Company Subsidiary or the other party or parties thereto under any Contract listed on the Contracts Schedule. To the Company’s Knowledge: (i) no party to any Contract listed on the Contracts Schedule has exercised any early termination rights with respect thereto; and (ii) no party has given written notice of any material dispute with respect to any Contract listed on the Contracts Schedule.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Brooks Automation Inc)
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules Schedule 4.7(a) sets forth a complete list of the following Contracts to which the Company is a party:
, is bound by, or receives benefits under and which are (i) any partnership, joint venture, or similar Contract that involves the sharing of profits or losses;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than material Contracts not made in the Ordinary Course of Business;
Business (viiincluding any Contracts pursuant to which the Company received funding from a Seller or an Affiliate of a Seller), (ii) any Contract relating to the acquisition borrowing of money by the Company or the guarantee by the Company of any such obligation, (iii) a Contract that by its terms either requires the Company to do business with the contract party on an exclusive basis or restricts or limits the Company from owning, managing or operating any business or in any geographical location (including non-competition agreements), (iv) any joint venture or partnership agreement, (v) any agreement that grants any right of first refusal or right of first offer or similar right to third parties or that limits or purports to limit the ability of the Company in any material respect to pledge, sell, transfer or otherwise dispose of any material amount of assets or capital stock the Business, (vi) any Contract providing for any material future payments that are conditioned, in whole or in part, on a change of control with respect to the Company, (vii) any material agency, broker, sale representative, marketing or similar Contract, (viii) any Contract that contains a “most favored nation” clause obligating the Company to change the material terms and conditions of such Contract based on better terms or conditions provided to other parties in similar Contracts, (ix) any Contract relating to any merger or business combination concerning the Company or the acquisition or disposition of any material assets in the last three (3) years, (x) any Contract with any director, officer, employee or Affiliate of the Company, (xi) any currently effective Contract with any customer set forth in Schedule 4.24, (xii) any material Contract of the Company based on aggregate expenditures in excess of $50,000, and (xiii) any other PersonContract which is otherwise material to the Company (the Contracts of the type covered in clauses (i) through (xiii), other than the “Material Contracts”).
(b) Except as set forth in Schedule 4.7(b), the Company has performed in all material respects the obligations required to be performed by it to date under each Material Contract. The Company is not in material breach or default under any order, writ, judgment, decree or Material Contract to which it is a party or by which it or any of its assets is bound, whether entered into in the Ordinary Course of Business;
(viii) any agreement relating Business or otherwise and whether written or oral, and, to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments Knowledge of the Company) , there has not occurred any event that, with the lapse of time or to mortgaginggiving of notice or both, pledging would constitute such a material breach or otherwise placing default. The Company has not received notice of any cancellation, material breach of, or default under (or any condition which, with the passage of time or the giving of notice, would cause a Lien (other than a Permitted Lien) on material breach of, or default under), any portion of the assets of the Company;Material Contract.
(ixc) any A true, correct and complete copy of each Material Contract under which the Company has made advances or loans been delivered to any other Person (which shall not include advances made Buyer prior to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;.
(xid) any Except as set forth in Schedule 4.7(d), each Material Contract with a Governmental Authority or pursuant will continue to which be enforceable after the Company participates Closing and shall not be affected in any program involving a Governmental Authority;
(xii) any Contract pursuant to which material respect by the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change execution and delivery of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay this Agreement and the consummation of the transaction transactions contemplated by this Agreement;
(xiv) hereby, and no notice to, or consent, approval or waiver is required from any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants party to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse EffectContract.
(b) Each of the Contracts set forth or required to be set forth on Section 3.12
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 of Except as set forth in Schedule 4.20(a), neither the Company Disclosure Schedules sets forth a list nor any of the following Contracts its properties or other assets is subject to which the Company is a partyany:
(i) Contract by which the Company has sold or agreed to sell services to a customer during the 2019 fiscal year or to date during the 2020 fiscal year in excess of Seventy Five Thousand Dollars ($75,000) in any partnership, joint venture, twelve-month period and for which any obligations of any party thereto remain unperformed or similar Contract that involves the sharing of profits or lossesunsatisfied;
(ii) Contract by which the Company has purchased or agreed to purchase goods or services from a supplier in excess of Seventy Five Thousand Dollars ($75,000) in any Contract with a Significant Customer twelve-month period and for which any obligations of any party thereto remain unperformed or Significant Supplierunsatisfied;
(iii) covenant not to compete or other covenant (A) limiting or restricting the development, marketing, distribution or sale of any Labor Agreement;
of the products or services of the Company or any future line extension of such products or services into other forms, (ivB) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of compete with any other Person, or (C) restricting or prohibiting the Company from transacting business or dealing in any manner with any other than in the Ordinary Course of BusinessPerson;
(viiiiv) Contract that contains a “most-favored nation” or “most-favored-customer” clause;
(v) Contract with any agreement relating to the incurrenceAffiliate, assumptiondirector, surety officer, manager, equityholder, or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets Employee of the Company;
(vi) management, employment, service, consulting, severance, incentive, transaction bonus or other similar type of Contract, including any agreement pursuant to which any severance, golden parachute or bonus payments are due to Employees, directors, managers or Independent Contractors in connection with a change of control of the Company;
(vii) profit sharing, equity option, equity purchase, equity appreciation, deferred compensation or other material plan or agreement for the benefit of the Company’s present and former employees or independent contractors;
(viii) Company IP Contracts;
(ix) mortgage, pledge, security agreement, deed of trust, loan agreement, credit agreement, indenture, conditional sale or title retention agreement, equipment financing obligation or other instrument or agreement either (A) creating or granting an Encumbrance upon any Contract under which of the Company has made advances material properties or loans to any other Person (which shall not include advances made to an employee assets of the Company in (other than Permitted Encumbrances), or (B) requiring the Ordinary Course payment of Business)penalties or other costs upon the early payment, termination or retirement of any amounts owing thereunder;
(x) any collective bargaining agreement or other Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim labor union or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreementassociation representing Employees;
(xi) Contract establishing, creating or governing any Contract with a Governmental Authority partnership, alliance, affiliation, subcontract, joint venture, limited liability company, limited liability partnership or pursuant to which the Company participates in any program involving a Governmental Authoritysimilar relationship;
(xii) Contract to make any Contract pursuant to capital expenditures or capital additions or improvements in an amount in excess of Twenty Five Thousand Dollars ($25,000) and for which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facilityobligations by any party remain;
(xiii) guaranty, surety or similar Contracts by which the Company makes itself primarily or contingently liable in respect of any Contract that requires a consent to or otherwise contains a provision relating to a “change indebtedness of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreementother Person;
(xiv) any agency, dealer, sales representation or other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ noticesimilar Contract;
(xv) Contracts under which Contract providing for the Company is a licensor indemnification of any current or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in former Representative of the Ordinary Course of Business)Company;
(xvi) any other teaming agreement in respect of any Government Contract or Government Bid;
(not described in clauses xvii) Company Leases;
(xviii) Contracts under which a default by the Company under such Contract or a termination right by the customer under such Contract (i) to would not arise or (xviiii) abovewould not arise for a period of thirty (30) days if (A) the termination interruption of which the delivery of a service or product of the Company results from the COVID-19 Pandemic, or (B) the delivery of a service or product of the Company otherwise not in compliance with such Contract results from the COVID-19 Pandemic; or
(xix) Contract entered into outside the Ordinary Course of Business or that is otherwise material to the Company. Contracts required to be disclosed on Schedule 4.20(a) hereto pursuant to this Section 4.20(a), are hereinafter referred to as “Material Contracts.”
(b) Each Material Contract is a valid and binding obligation of the Company, in full force and effect and enforceable in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and the implied covenant of good faith and fair dealing. Neither the Company nor, to the Company’s Knowledge, any other party to any Material Contract, is in material violation of or in material default under any Material Contract, and, to the Company’s Knowledge, no event has occurred, and no circumstance or condition exists, that, with or without notice, lapse of time or both, would reasonably be expected to have (i) result in a Company violation of or default under any Material Adverse EffectContract, (ii) give any party the right to cancel, terminate or modify any Material Contract, or (iii) give any party to any Material Contract the right to seek damages or other remedies.
(bc) Each The Company has made available to the Surviving Entity true, correct and complete copies of all Material Contracts as currently in effect, and except as set forth in Schedule 4.20(c), there have been no oral or written modifications, amendments or waivers with respect to of any of the Contracts set forth or required to be set forth on Section 3.12terms of any of the Material Contracts.
Appears in 1 contract
Sources: Merger Agreement (Castellum, Inc.)
Contracts and Commitments. (a) Section 3.12 Except as set forth on Schedule 3.11(a) or Schedule 3.14(a), none of the Companies is party, or subject, to any:
(i) agreement relating to any completed or pending business acquisition or divestiture since January 1, 2017;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan;
(iii) equity option or similar plan;
(iv) contract (A) for the employment of any officer, individual employee or other person by any Company, (B) providing for the payment of any cash or other compensation or benefits by any Company Disclosure Schedules upon the consummation of the transactions contemplated hereby, or (C) that provides severance or other benefits from any Company to any person;
(v) agreement under which any of the Companies created, incurred or assumed any Indebtedness (including any conditional sales agreement, sale-leaseback or capitalized lease) or mortgaged, pledged or otherwise granted a Lien on any portion of any of the Companies’ assets, other than the Permitted Liens;
(vi) guaranty of any Indebtedness;
(vii) lease or agreement under which it is lessee of or holds or operates any personal property owned by any other Person, for which the annual rental exceeds $100,000;
(viii) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, for which the annual rental exceeds $100,000;
(ix) other contract, lease or agreement that cannot be canceled by a Company without penalty or further payment or obligation and without more than ninety (90) days’ notice and with remaining fixed payments in excess of $100,000 under any such contract;
(x) agreement containing covenants that in any way purport to restrict the right of any Company to engage in its current line of business, engage in any line of business, compete with any Person, or solicit customers;
(xi) hedging arrangement or forward, swap, derivatives or futures contract;
(xii) joint venture, partnership, franchise, joint marketing agreement or any other similar contract or agreement (including sharing of profits, losses, costs or liabilities by any Company with any other Person);
(xiii) material licensing agreement or other material contract or agreement with respect to Intellectual Property, including material contracts or agreements with current or former employees, consultants or contractors regarding the appropriation or non-disclosure of any Intellectual Property, other than contracts with less than $100,000 fixed payments remaining;
(xiv) agreement under which any Company has made loans or advances to any other Person, and such advances or loans remain outstanding in an amount of greater than $5,000, except advancement of reimbursable ordinary and necessary business expenses made to directors, managers, officers, employees and independent contractors (including but not limited to advances to owner-operators for vehicle repairs) of any Company in the ordinary course of business;
(xv) contract or agreement with any consultant or employee or any current or former officer, director, manager, equity holder, or Affiliate of the Companies;
(xvi) settlement, excluding worker’s compensation matters, the performance of which will involve payment after the date of this Agreement of consideration in excess of $100,000 or governmental monitoring, consent decree or reporting responsibilities;
(xvii) contracts with Governmental Authorities;
(xviii) contract or agreement, not otherwise covered by the foregoing, that is otherwise material to the Companies, taken as a whole, except for contracts or agreements entered into in the ordinary course of business;
(xix) all other contracts involving aggregate consideration in excess of $100,000 annually that are not terminable by Seller upon notice of ninety (90) days or fewer and not of a type required to be disclosed pursuant to any other clause of this Section 3.10 or
(xx) amendment, supplement and modification (whether oral or written) in respect of any of the foregoing other than amendments, supplements and modifications entered into in the ordinary course of business.
(b) Except as set forth on Schedule 3.11(a) or Schedule 3.14(a), the Companies have made available to Buyer a true, correct and complete copy of each written agreement set forth on Schedule 3.11(a) or Schedule 3.14(a), including all modifications and amendments thereto. Except as set forth on Schedule 3.02, Schedule 3.11(a) or Schedule 3.14(a), with respect to each agreement set forth on Schedule 3.11(a) or Schedule 3.14(a), such agreement: (i) is valid, binding and in full force and effect in all material respects; (ii) will remain unmodified and in full force and effect immediately after the Closing without any right on the part of any counterparty, including with the passage of time or notice, or both, to terminate, modify or impose any penalty as a result of the transactions contemplated hereby; (iii) is and will remain, including with the passage of time or notice, or both, immediately after the Closing enforceable by the applicable Company in accordance with its respective terms (except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of equitable remedies); and (iv) none of the Companies, nor, to Sellers’ Knowledge, any other party, is in material breach or default under such agreement. No Company has received any written notice (or to Sellers’ Knowledge, any other notice) of the intention of any party to terminate any agreement listed on Schedule 3.11(a). Except as set forth on Schedule 3.11(a), there are no oral agreements with respect to the subject matter of Schedule 3.11(a) or Schedule 3.14(a) that, individually or in the aggregate, are material to any Company.
(c) Schedule 3.11(c) sets forth a list of the following Contracts to which Companies’ ten (10) largest customers (by consolidated revenue) for the Company is a party:
2021 fiscal year (i) any partnershipthe “Material Customers”). Except as set forth on Schedule 3.11(c), joint venturetrue, or similar Contract that involves the sharing correct and complete copies of profits or losses;
(ii) any Contract each transportation contract with a Significant Material Customer, including all modifications and amendments thereto, have been provided to Buyer as of the Closing (collectively, “Customer Contracts”). None of the Companies, nor, to Sellers’ Knowledge, any other party, is in material breach or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employmentdefault under such Customer Contract. Other than customary notice to the applicable Company that such Company must bid to continue to provide services to a customer as part of the customer’s normal bid cycles, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 no Company has received written notice (or, in the case of a severanceto Sellers’ Knowledge, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Personnotice) from any customer party to a Customer Contract that such customer intends to terminate, other than in the Ordinary Course of Business;
(viii) any agreement relating substantially modify, fail to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease inrenew, or the right to use or occupy reduce volumes substantially under, any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse EffectCustomer Contract.
(bd) Each Schedule 3.11(d) sets forth a list of the Contracts set forth Companies’ ten (10) largest vendors or required to be suppliers (by consolidated expenses) for the 2021 fiscal year (the “Material Vendors”). Except as set forth on Section 3.12Schedule 3.11(d), true, correct and complete copies of the contracts with each Material Supplier, including all modifications and amendments thereto, have been provided to Buyer as of the Closing (collectively, “Vendor Contracts”). None of the Companies, nor, to Sellers’ Knowledge, any other party, is in material breach or default under such contract. No Company has received written notice (or, to Sellers’ Knowledge, any other notice) from any vendor party to a Vendor Contract that such vendor intends to terminate, substantially modify, fail to renew or reduce volumes substantially under any such Vendor Contract.
Appears in 1 contract
Sources: Asset Purchase Agreement (Pam Transportation Services Inc)
Contracts and Commitments. Except as set forth in Schedule 3.18, the Companies are not a party to:
(a) Section 3.12 any partnership agreements or joint venture agreements which require a payment, or delivery of assets or services beyond the 2015/2016 ski season and which are not terminable by the applicable Company on 30 days or less written notice without penalty to the applicable Company, or which contain exclusivity arrangements which will be binding upon the Affiliates of the applicable Company Disclosure Schedules sets forth a list of following the following Contracts Closing;
(b) any agreement pursuant to which the applicable Company is a party:
(i) would be required to pay severance to any partnership, joint venture, or similar Contract that involves the sharing of profits or losses;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, employee or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)consultant;
(vc) any Contract material agreement with another Person concerning confidentiality person or non-competition materially entity limiting or restricting the ability of the applicable Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classificationbusiness;
(vid) any Contract material brokerage agreements;
(e) any agreements for the sale of any of the assets of the Company, applicable Company other than in the Ordinary Course ordinary course of Businessbusiness or for the grant to any person or entity of any preferential rights to purchase any of its assets;
(viif) any Contract agreement relating to the acquisition by the applicable Company of any operating business or the assets or capital stock of any other Personcorporation, other than in entity or business entered into during the Ordinary Course of Businesslast twelve (12) months;
(viiig) any agreement material agreements relating to the incurrence, assumption, surety or guarantee of any Indebtedness indebtedness;
(excluding h) any agreement material agreements, other than agreements granting rights to guarantee lease payments use readily available commercial Software and having an acquisition price of less than $50,000 in the aggregate for all such agreements and agreements allowing the use of Company trademarks, trade names or other marks or names in connection with promotional activities (i) granting or obtaining any right to use any Intellectual Property or (ii) restricting the rights of the applicable Company) , or permitting other Persons, to mortgaging, pledging use or otherwise placing a Lien (other than a Permitted Lien) on register any portion Intellectual Property of the assets of the applicable Company;
(ixi) any Contract material agreements under which the applicable Company has made advances or loans to any other Person (which shall entity or individual not include including advances made to an employee of the applicable Company in the Ordinary Course ordinary course of Business)business consistent with past practice;
(xj) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which both a Company and any Affiliate (except for another Company) are jointly and severally liable for breach of such agreement by such Affiliate; or
(k) except for agreements described in Schedule 3.18(k), any other agreement, including group of related agreements, the performance of which presently requires aggregate payments be made to or from the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess 100,000 per year. Each of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under contracts to which the any Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of and which would reasonably be expected to have a Company Material Adverse Effect.
(b) Each of the Contracts set forth or is required to be set forth on Section 3.12Schedule 3.18 (the “Material Contracts”), a true and complete copy of each of which has been delivered or made available to Buyer prior to the date hereof is in full force and effect and is the legal, valid and binding obligation of the applicable Company, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general principles of equity regardless of whether enforcement is sought in a proceeding at law or in equity. With respect to each Material Contract, neither the applicable Company nor, to the Knowledge of Sellers, any other party, is in material breach of violation of, or default under, any such Material Contract and no event has occurred, is pending or, to the Knowledge of Sellers, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material breach or default by the applicable Company, to the Knowledge of Sellers, any other party under such Material Contract.
Appears in 1 contract
Contracts and Commitments. (a) Except as disclosed in Section 3.12 3.22 of the Company Disclosure Schedules sets forth a list of the following Contracts to which Schedule, neither the Company nor any of its subsidiaries is a partyparty or subject to:
(i) any partnershipplan, joint venturecontract or arrangement which requires aggregate payments by the Company or any of its subsidiaries, written or oral, providing for bonuses, pensions, deferred compensation, severance pay or benefits, retirement payments, profit-sharing, or similar Contract that involves the sharing of profits or losseslike;
(ii) any Contract joint marketing, joint development or joint venture contract or arrangement or any other agreement which has involved or is expected to involve a sharing of profits with a Significant Customer or Significant Supplierother Persons;
(iii) any Labor Agreementlease for real or personal property;
(iv) any employmentagreement, severancecontract, incentive compensationmortgage, retentionindenture, change lease, instrument, license, franchise, permit, concession, arrangement, commitment or authorization which may be, by its terms, terminated or breached by reason of controlthe execution of this Agreement, the Merger, or consulting Contract with any current director, officer, the consummation of the transactions contemplated hereby or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)thereby;
(v) except for trade indebtedness incurred in the ordinary course of business, any Contract with another Person concerning confidentiality instrument evidencing or non-competition materially limiting or restricting the ability of the Company to enter into or engage related in any market way to indebtedness incurred in the acquisition of companies or line other entities or indebtedness in for borrowed money by way of business direct loan, sale of debt securities, purchase money obligation, conditional sale, guarantee, indemnification or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classificationotherwise;
(vi) any Contract for contract containing covenants purporting to limit the sale Company's freedom or that of any of the assets its subsidiaries to solicit customers or employees or to compete in any line of the Company, other than business or in the Ordinary Course of Businessany geographic area or with any third party;
(vii) any Contract agreement, contract or commitment relating to the acquisition by the Company capital expenditures and involving future obligations in excess of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business$50,000;
(viii) any agreement relating to the incurrencecontracts with customers, assumptionreferral sources, surety or guarantee third party payors, and any other contracts with independent suppliers, contractors or manufacturers which require an annual payment of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) $50,000 or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Companymore;
(ix) any Contract under which the Company has made advances sales agency, licensing, representative, provider, managed care or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);distributorship contracts; or
(x) any Contract relating to agreement providing for the settlement, conciliation or similar agreement with any Governmental Authority Company's indemnification of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreementthird party;
(xi) any Contract with a Governmental Authority other agreement, contract or pursuant commitment which is material to which the Company participates in any program involving and its subsidiaries taken as a Governmental Authority;whole.
(xiib) any Contract pursuant to which Except as disclosed in Section 3.22 of the Company is granted a lease inDisclosure Schedule, a sublease ineach agreement, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation contract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license and commitment listed in Section 3.22 of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future Company Disclosure Schedule is valid and binding on the Company or potential Liability or receivableits subsidiaries, as applicable and assuming due and valid authorization, execution and delivery by all other parties, and is in full force and effect, and neither the case may beCompany nor any of its subsidiaries, in excess nor to the knowledge of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicableany other party thereto, without penalty has breached any material provision of, or further payment and without more than thirty (30) days’ notice;is in material default under the terms of, any such agreement, contract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license or commitment.
(xvc) Contracts under which There is no agreement, judgment, injunction, order or decree binding upon the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of its subsidiaries which would has or could reasonably be expected to have a the effect of prohibiting or materially impairing any material current business practice of the Company Material Adverse Effector its subsidiaries, any acquisition of material property by the Company or its subsidiaries or the conduct of business by the Company or its subsidiaries as currently conducted or as proposed to be conducted by the Company or its subsidiaries.
(bd) Each agreement or arrangement under which the Company or any of its subsidiaries will incur legal, accounting or financial advisor expenses as a result of the Contracts set forth transactions contemplated by this Agreement, and the maximum liability of the Company or required to be set forth on any such subsidiary under each such agreement or arrangement, is described in Section 3.123.22 of the Company Disclosure Schedule.
Appears in 1 contract
Sources: Merger Agreement (Home Health Corp of America Inc \Pa\)
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules Excluding this Agreement, Schedule 3.14(a) sets forth a list of all of the following Contracts to which the Company is a party:party or is otherwise bound (collectively, "Material Contracts"):
(i1) Contracts for the employment of any partnershipofficer, joint ventureindividual employee, or similar other Person or entity on a full-time, part-time, consulting or other basis, other than on an at-will basis with no severance or notice requirements, any Contracts providing severance or other termination benefits for any such Person, or any Contract that involves relating to loans to or from executive officers, directors or Affiliates other than immaterial advances to such Persons made by the sharing Company in the ordinary course of profits or lossesbusiness;
(ii2) Contracts requiring payment, or being reasonably likely to result in payment, by any party to the Contract of more than $150,000 annually or with a term of more than three years, other than (for purposes of this subclause (2)) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any such Contract for the sale of inventory by the Company to a dealer or distributor or for the purchase of inventory by the Company from a supplier, in each case, in the ordinary course of business (provided that, notwithstanding the foregoing, any such Contract with a supplier shall nonetheless be deemed a Material Contract);
(3) Contracts relating to (A) Indebtedness of the Company (including the borrowing of money) or (B) the mortgaging, pledging, or otherwise placing a Lien on any asset or group of assets of the Company, other than in the Ordinary Course of BusinessPermitted Liens;
(vii4) any Contract Contracts relating to the acquisition lending or investing of funds other than immaterial advances to directors, managers, or employees made by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course ordinary course of Businessbusiness;
(viii5) Leases or other Contracts under which it is lessee of or holds or operates any agreement relating property, real or personal, owned by any other party;
(6) Leases or other Contracts under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it;
(7) Contracts involving Intellectual Property Rights that are material to the incurrenceCompany (including, assumptionfor clarity, surety Contracts that include an assignment, license, indemnification or guarantee agreement with respect to any such Intellectual Property Rights), excluding (A) non-disclosure agreements entered into the ordinary course of business that provided only limited rights to use and evaluate the confidential information disclosed thereunder; (B) Contracts for a non-exclusive license to commercially available off-the-shelf software or firmware (including software provided as a service) licensed under standard terms and not exceeding $25,000 in cost in the aggregate; (C) non-exclusive licenses to vendors and service providers terminable at will by the Company; and (D) contracts with employees covering Intellectual Property Rights created within the scope of their employment;
(8) Contracts containing any Indebtedness (excluding covenant that in any agreement way purports to guarantee lease payments restrict the right or freedom of the CompanyCompany to (A) engage in any business activity, (B) engage in any line of business or compete with any Person, (C) conduct any activity in any geographic area or (D) solicit any Person to mortgagingenter into a business or employment relationship, pledging or otherwise placing enter into such a Lien relationship with any Person;
(other than 9) Contracts with any dealer, distributor, sales representative or supplier required to be listed on Schedule 3.24;
(10) Contracts that involve a Permitted Lien) on any portion of the assets repurchase obligation with respect to products of the Company;
(ix11) Contracts that relate to the development or joint development of any Contract under products of the Company, other than employment agreements with employees of the Company;
(12) Contracts with any Insider;
(13) Contracts involving the waiver, compromise, or settlement of any material right or Proceeding within the past three years or for which the Company has not fully performed as of the date hereof; or
(14) Contracts (A) that provide for any exclusivity arrangements, that provides for unexpired rights of first or last offer or that includes a provision of the type commonly referred to as a "most-favored nations" or "key man" provision, (B) that provide for a collective bargaining agreement or similar Contract with any labor union, works council or other labor organization, (C) that require payments upon a "change of control" of the Company, (D) that are with a Governmental Authority, (E) that provide for material indemnification obligations by the Company of any Person (other than in the ordinary course with respect to the sale of products or services of the Company), (F) involving the establishment of, contribution to, or operation of a joint venture, partnership or other similar arrangement or otherwise relating to any investment made advances or loans to in any other Person or other acquisition, (which shall not include advances made G) involving a merger, consolidation or business combination or (H) appointing any agent to an employee act on behalf of the Company or granting any power of attorney by the Company other than such appointments for international boat transfers in the Ordinary Course ordinary course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectbusiness.
(b) Each of the Contracts set forth or required to be set forth on Section 3.12
Appears in 1 contract
Contracts and Commitments. Except as set forth in Schedule 4.15, the Company is not party to:
(a) Section 3.12 any collective bargaining agreements;
(b) any employment or consulting agreement, contract or commitment with any officer, director, Current Employee or member of the Company’s Board or any Subsidiary’s Board of Directors;
(c) any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements;
(d) any commission and/or sales agreement with a Current Employee, individual consultant or salesperson, or under which a firm or other organization provides commission or sales-based services to the Company Disclosure Schedules sets forth a list or any Subsidiary;
(e) any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the following Contracts to benefits of which will be increased, or the Company is vesting of benefits of which will be accelerated, by the occurrence of the Merger or any of the other transactions contemplated by this Agreement and the Transaction Documents or the value of any of the benefits of which will be calculated on the basis of the Merger or any of the other transactions contemplated by this Agreement or the Transaction Documents;
(f) any fidelity or surety bond or completion bond;
(g) any lease of personal property having a party:value individually in excess of $5,000;
(h) any agreement of indemnification or guaranty other than customer agreements entered into in the ordinary course of business;
(i) any partnership, joint venture, or similar Contract that involves the sharing of profits or losses;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) agreement relating to capital expenditures involving future payments in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)10,000;
(vj) any Contract with another Person concerning confidentiality or non-competition materially agreement containing any covenant limiting or restricting the ability freedom of the Company or any Subsidiary to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixingin any geographic territory or to compete with any Person, “most favored nation”or which grants to any Person any exclusivity to any geographic territory, market any customer, or customer sharing, exclusivity any product or market classificationservice;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viiik) any agreement relating to the incurrence, assumption, surety disposition or guarantee acquisition of assets or any Indebtedness (excluding interest in any agreement to guarantee lease payments business enterprise outside the ordinary course of the Company) ’s or any Subsidiary’s business or any agreement relating to mortgaging, pledging the acquisition of assets or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Companyinterest in any business enterprise;
(ixl) any Contract under which mortgages, indentures, loans or credit agreements, security agreements or other agreements or instruments relating to the Company has made advances borrowing of money or loans extension of credit, including guaranties referred to any other Person in clause (which shall not include advances made to an employee of the Company in the Ordinary Course of Business)h) hereof;
(xm) any Contract relating to the settlementunpaid or unperformed purchase order or purchase contract (including for services) involving $10,000 or more;
(n) any dealer, conciliation distribution, joint marketing (including any pilot program), development, content provider, destination site, affinity, affiliate or similar sales representative agreement,
(o) any agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have or any material outstanding obligation after Subsidiary has granted or may be obligated to grant in the date of this Agreementfuture, to any party a source-code license or option or other right to use or acquire source-code, including any agreements which provide for source code escrow arrangements;
(xip) any Contract with a Governmental Authority sales representative, original equipment manufacturer, value added, remarketer or other agreement for distribution of the Company’s or any Subsidiary’s products or services, or the products or services of any other Person;
(q) any agreement pursuant to which the Company participates or any Subsidiary has advanced or loaned any amount to any stockholder of the Company or any director, officer, employee, or consultant other than business travel advances in any program involving a Governmental Authority;the ordinary course of business consistent with past practice; or
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvir) any other agreement that involves $10,000 or more and is not cancelable by the Company or any Subsidiary without penalty within ninety (not described 90) days. Except as set forth in clauses Schedule 4.15: (i) to each Contract is in full force and effect; and (xvii) aboveii) the termination of which would reasonably be expected to Company and each Subsidiary are in compliance in all material respects with and have a Company Material Adverse Effect.
(b) Each not breached, violated or defaulted under, or received written notice that they have breached, violated or defaulted under, in any material respect, any of the Contracts set forth terms or required to be set forth on Section 3.12conditions of any Contract, nor does the Company have knowledge of any event or occurrence that would constitute such a breach, violation or default (with or without the lapse of time, giving of notice or both).
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 Except as set forth on Schedules 2.2(b), 2.4, 2.12 or 2.20(b), as of the date of this Agreement, the Company Disclosure Schedules sets forth does not have, is not a list party to nor is it bound by: any collective bargaining agreements, any agreements or arrangements that contain any severance pay or similar post-employment liabilities or obligations, any bonus, deferred compensation, pension, profit sharing or retirement plans, or any other employee benefit plans or arrangements, any employment or consulting agreement with an employee or individual consultant or salesperson or consulting or sales agreement with a firm or other organization, any agreement or plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the following Contracts to 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, any fidelity or surety bond or completion bond, any lease of personal property involving annual payments by the Company is a party:
(i) in any partnership, joint venture, or similar Contract that involves the sharing of profits or losses;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) individual case in excess of $100,000 (or50,000, in any agreement of indemnification or guaranty other than pursuant to the case of a severance, incentive compensation, retention or change of control Company's standard end-user license agreement, an aggregate payment which is attached to the Company Schedule, any agreement containing any covenant limiting the freedom of the Company to engage in any line of business or to compete with any person, any agreement relating to capital expenditures and involving payments required to be made by the Company after the date of this Agreement in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing150,000, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety disposition or guarantee acquisition by the Company after the date of this Agreement of assets or any Indebtedness (excluding interest in any agreement to guarantee lease payments business enterprise outside the ordinary course of the Company) 's business, any mortgages, indentures, loans or to mortgagingcredit agreements, pledging security agreements or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances agreements or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract instruments relating to the settlementborrowing of money by or extension of credit by or to the Company, conciliation any purchase order or similar contract for the purchase of raw materials (not including in-license of technology) involving $5,000 or more, any construction contracts, any distribution, joint marketing or development agreement with which cannot be canceled without penalty upon notice of sixty (60) days or less, Except for escrow agreements identified on Schedule 2.12, any Governmental Authority of any claim or action or agreement pursuant to which the Company will have has granted or may grant in the future, to any material outstanding obligation after the date of this Agreement;
(xi) any Contract with party a Governmental Authority source-code license or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, option or the other right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to acquire source-code, or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract agreement that (A) involves a future payments by the Company of $100,000 or potential Liability more or receivable, as the case may be, is not cancelable without penalty in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than 25,000 within thirty (30) days’ notice;
(xv) Contracts under which . Except as specifically disclosed in the Company Schedule, the Company is a licensor not in breach, violation or otherwise grants to a third party default under, and the Company has not between December 31, 1999 and the date of this Agreement received any rights to use written notice that it has breached, violated or defaulted under, any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effect.
(b) Each of the Contracts set forth terms or conditions of any agreement, contract or commitment required to be set forth on Section 3.12Schedule 2.12 or Schedule 2.11 (any such agreement, contract or commitment, a "Contract") (except for notices relating to breaches, violations or defaults that have been cured or corrected in all material respects). Assuming due execution by the other parties thereto, each Contract is in full force and effect and except as otherwise disclosed in the Company Schedules is not subject to any default thereunder of which the Company has knowledge by any party obligated to the Company pursuant thereto. Schedule 2.12(A) identifies each Contract that requires a consent, waiver or approval to preserve all rights of, and benefits to, the Surviving Corporation under such Contract as a result of entering into this Agreement or effecting the Merger or the other transactions contemplated by this Agreement (each a "Required Consent").
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Critical Path Inc)
Contracts and Commitments. (a) Section 3.12 of Except as specifically contemplated by this Agreement and except as set forth on Schedule 4.13 attached hereto (the Company Disclosure Schedules sets forth a list of the following “Contracts to which Schedule”), the Company is not a party:
party to or bound by, whether written or oral, any: (i) bonus, pension, profit sharing, retirement or any partnershipother form of deferred compensation plan or any stock purchase, joint venturestock option, hospitalization insurance or similar Contract that involves the sharing of profits plan or losses;
practice, whether formal or informal; (ii) Contract for the employment of any Contract with officer, individual employee or other person on a Significant Customer full-time or Significant Supplier;
consulting basis, any severance agreement or any agreement requiring any payment upon a change of control of the Company; (iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, Contract or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract indenture relating to the acquisition by the Company borrowing of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) money or to mortgaging, pledging or otherwise placing a Lien lien on any of its assets; (iv) agreements with respect to the lending or investing of funds; (v) license or royalty agreements; (vi) guaranty of any obligation, other than a Permitted Lienendorsements made for collection; (vii) on lease or agreement under which it is lessee of, or holds or operates, any portion personal property owned by any other party calling for payments in excess of the assets $2,000 annually; (viii) lease or agreement under which it is lessor of the Company;
or permits any third party to hold or operate any property, real or personal, owned or controlled by it; (ix) Contract or group of related Contracts (not including utility service agreements) with the same party for the purchase or sale of supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than one year (except if such Contracts do not involve a sum in excess of $2,500 annually) or involves a sum in excess of $5,000; (x) Contract or group of related Contracts with the same party continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 days or less notice without penalties or involving more than $15,000; (xi) Contract with any Contract under which the Company has made advances officer, director, shareholder or loans to any other Person (which shall not include advances made to an employee insider of the Company in or any of its affiliates, or any family member or relative of Seller (or trust for the Ordinary Course benefit of BusinessSeller or any of the foregoing);
, or with any entity controlled by or under common control of any such party (xtogether, all such parties are “Related Parties”); (xii) any Contract relating to the settlementdistribution, conciliation marketing or similar sales of its products, including the terms of sale used by Company in connection with confirmations of any purchase orders or shipments made to customers; (xiii) warranty agreement with any Governmental Authority of any claim or action or respect to products sold; (xiv) Contracts pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority subcontracts work to third parties; or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor other Contract material to it whether or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis not entered into in the Ordinary Course ordinary course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectbusiness.
(b) Each of Except as specifically contemplated by this Agreement or disclosed in the Contracts set forth Schedule, (i) to the Company’s knowledge, no Contract or commitment required to be disclosed on the Contracts Schedule has been breached or cancelled by the other party since the date of the Latest Balance Sheet; (ii) the Company has performed all the obligations required to be performed in connection with the Contracts required to be disclosed on the Contracts Schedule and is not in receipt of any claim of default under any contract or commitment required to be disclosed on the Contracts Schedule, (iii) the Company does not have a present expectation or intention of not fully performing any obligation pursuant to any contract set forth on Section 3.12the Contracts Schedule and (iv) the Company has no knowledge of any breach or anticipated breach by any other party to any contract set forth on the Contracts Schedule.
(c) Prior to the date hereof, the Company has delivered to Buyer true and correct copies of all written Contracts which are referred to on the Contracts Schedule, in each case together with all amendments or other changes thereto. The Contracts Schedule contains an accurate and complete description of all material terms of all oral Contracts referred to therein.
Appears in 1 contract
Sources: Purchase Agreement (Nutraceutical International Corp)
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules sets Except as expressly contemplated by this Agreement or as set forth a list of the following Contracts to which in SCHEDULE 3.11 hereto, the Company is not a partyparty to or bound by any written or oral:
(i) management agreement or other contract relating to the Company's management or operation of any partnershipproperty, joint venture, or similar Contract that involves other than agreements involving the sharing payment of profits or lossesless than $50,000 per year which are not otherwise material to the Company's business;
(ii) contract for the employment of any Contract with officer, individual employee or other Person on a Significant Customer full-time, part-time, consulting or Significant Supplierother basis or contract relating to loans to officers, directors or Affiliates of the Company;
(iii) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any Labor Agreementother employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(iv) contract under which the Company has advanced or loaned to any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, other Person amounts in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of exceeding $100,000)50,000;
(v) any Contract with another Person concerning confidentiality agreement or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract indenture relating to the acquisition by the Company of any operating business borrowed money or other indebtedness or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion material asset or material group of the assets of the Company;
(ixvi) guarantee of any Contract obligation, or power of attorney granted to any Person;
(vii) lease or agreement under which the Company has made advances is lessee of or loans to holds or operates any property, real or personal, owned by any other Person party, except for any lease of personal property under which the aggregate annual rental payments do not exceed $50,000;
(viii) lease or agreement under which shall not include advances made to an employee of the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(ix) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the Ordinary Course excess of Business)$50,000 during any 12-month period;
(x) any Contract relating to the settlementassignment, conciliation license, indemnification or similar agreement with respect to any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreementintangible property;
(xi) agreement under which it has granted any Contract with a Governmental Authority or pursuant to which the Company participates in person any program involving a Governmental Authorityregistration rights (including, without limitation, demand and piggyback registration rights);
(xii) contract or agreement prohibiting it from freely engaging in any Contract pursuant to which business or competing anywhere in the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;world; or
(xiii) any Contract that requires a consent other agreement which is material to or otherwise contains a provision relating its operations and business as presently proposed to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;be conducted.
(xivb) All the contracts, agreements and instruments set forth in SCHEDULE 3.11 hereto are valid, binding and enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the rights of creditors generally and to general principles of equity (whether considered in a proceeding in equity or at law). The Company is not in default under any other Contract that (A) involves a future such contract, agreement or potential Liability instrument, nor has the Company received any claim of default under any such contract, agreement or receivable, as the case may beinstrument, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Companyeach case which defaults could, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would aggregate, reasonably be expected to result in a Material Adverse Effect. No event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any such contract, agreement or instrument which defaults, breaches or events of noncompliance could, in the aggregate, reasonably be expected to result in a Material Adverse Effect. The Company has no present expectation or intention of not fully performing in all material respects all such obligations, and the Company does not have knowledge of any breach or anticipated breach by the other parties to any such contract, agreement, instrument or commitment which breaches could, in the aggregate, reasonably be expected to result in a Company Material Adverse Effect.
(bc) Each The Company has delivered to the Investor's counsel a true and correct copy of each of the Contracts set forth written instruments, plans, contracts and agreements and an accurate description of each of the oral arrangements, contracts and agreements which are referred to in SCHEDULE 3.11 hereto, together with all amendments, waivers or required to be set forth on Section 3.12other changes thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Dimeling Schreiber & Park)
Contracts and Commitments. (a) Section 3.12 As of the Company Disclosure Schedules sets forth a list date of the following Contracts to which this Agreement, the Company is not a partyparty to or bound by any:
(i) any partnership“material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company that was required to be, joint venturebut has not been, or similar Contract that involves filed with the sharing SEC as an exhibit pursuant to Item 601(b)(10) of profits or lossesRegulation S-K under the Securities Act;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iiiA) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the disposition or acquisition by the Company of any operating business assets (whether individually or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Companyaggregate) or that contains any material ongoing obligations (including sale of inventory, indemnification, “earn-out” or other contingent obligations) that are expected to mortgaging, pledging result in claims in excess of $150,000 or otherwise placing a Lien (other than a Permitted LienB) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have acquire any material outstanding ownership interest in any other person or other business enterprise;
(iii) collective bargaining agreement or Contract with any labor union, labor organization, trade organization or other employee representative body (other than any statutorily mandated agreement in a non-U.S. jurisdiction);
(iv) Contract establishing any joint venture, partnership, limited liability company or collaboration, pursuant to which the Company has an obligation after (contingent or otherwise) to make a investment in or extension of credit to any Person, in each case, that contemplates payments in excess of $250,000;
(v) Contract (A) prohibiting or materially limiting the date right of this Agreementthe Company or any of its Affiliates, including following the Acceptance Time, Parent and its Affiliates (other than in the case of Parent and its Affiliates, due to the operation of Contracts to which Parent or any of its Affiliates is a party prior to the Acceptance Time) to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or its Affiliates to purchase or otherwise obtain any material product or service exclusively from a single party, to purchase a specified minimum amount of goods or services, or sell any material product or service exclusively to a single party, (C) requiring the Company or its Affiliates, including following the Acceptance Time, Parent and its Affiliates (other than in the case of Parent and its Affiliates, due to the operation of Contracts to which Parent or any of its Affiliates is a party prior to the Acceptance Time) to conduct any business on a “most favored nations” basis with any third party, (D) under which any Person has been granted the right to manufacture, develop, sell, market or distribute any Product on an exclusive basis to any Person or group of Persons or in any geographical area, or (E) obligating the Company or its Affiliates to purchase or otherwise obtain any product or service exclusively from any third party or sell any product or service exclusively to any third party;
(vi) Contracts in respect of Indebtedness for borrowed money of $50,000 or more (whether incurred, assumed, guaranteed or secured by any asset);
(vii) Contract (other than a Company Plan) between the Company, on the one hand, and any Affiliate of the Company, on the other hand;
(viii) Contract relating to the voting or registration of any securities;
(ix) Contract containing a right of first refusal, right of first negotiation or right of first offer with respect to any equity interests or assets in favor of a party other than the Company;
(x) Contract under which the Company is expected to make annual expenditures or receive annual revenues in excess of $500,000 during the current or a subsequent fiscal year;
(xi) any Contract with a Governmental Authority or pursuant to which that obligates the Company participates to make any capital commitment, loan or similar expenditure in any program involving a Governmental Authorityan amount in excess of $250,000;
(xii) any Contract pursuant to which the Company is granted a lease incorporate integrity agreements, a sublease inconsent decrees, deferred prosecution agreements or the right to use other similar types of agreements with Governmental Bodies that have existing or occupy any Leased Real Property facilitycontingent performance obligations;
(xiii) any Contract that requires a consent to or otherwise contains a provision Contracts of the Company relating to a “change the settlement of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this AgreementAction;
(xiv) any Contracts of the Company (other Contract than Company Plans) that (A) involves a future prohibit, limit or potential Liability restrict the payment of dividends or receivabledistributions in respect of the capital stock of the Company or otherwise prohibit, as limit or restrict the case may bepledging of capital stock of the Company or prohibit, in excess limit or restrict the issuance of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled guarantees by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a with third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis manufacturers and suppliers for the manufacture and/or supply of materials or products in the Ordinary Course supply chain for Products that involve amounts invoiced in excess of Business)$250,000 during the current or a subsequent fiscal year;
(xvi) Contract that by its terms calls for or otherwise may require royalties, milestone payments or similar contingent payments;
(xvii) Contract that contemplates payments in excess of $250,000 in any other agreement calendar year (not A) that relates to the research, testing, clinical trial, development, commercialization, manufacture, marketing, importation, exportation, sale, distribution, supply or license of any Product, including Contracts with contract research organizations, or (B) under which clinical, pre-clinical or non-clinical data relating to any Product is or may be generated; or
(xviii) Contract to enter into any of the foregoing. Each such Contract described in clauses (i) to through (xvii) aboveabove of this Section 4.13(a) or excluded therefrom due to the termination exception of which being filed as an exhibit to the Company SEC Documents, together with each Company Lease listed or required to be listed in Section 4.11(b) of the Company Disclosure Letter, but excluding, in all cases, each Company Plan, is referred to herein as a “Company Material Contract.”
(i) Except as would not, individually or in the aggregate, reasonably be expected to have a be material to the Company, the Company (A) is not, and has not received written notice that any other party to any Company Material Adverse Effect.
Contract is, in violation or breach of or default (bwith or without notice or lapse of time or both) Each under or (B) has not waived or failed to enforce any rights or benefits under any Company Material Contract to which it is a party or any of its properties or other assets is subject, (ii) there has occurred no event giving to others any right of termination, material amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contract and (iii) each such Company Material Contract is in full force and effect and is a legal, valid and binding agreement of, and enforceable against, the Company, and, to the Knowledge of the Contracts set forth Company, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice of termination or required cancellation of any Company Material Contract or that it intends to be set forth on Section 3.12seek to terminate or cancel any Company Material Contract (whether as a result of the Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 3.21 of the Company Disclosure Schedules sets forth Schedule contains a complete and accurate list of all contracts and agreements (including, without limitation, oral and informal arrangements, but excluding agreements between the Company and any Company Subsidiary or among Company Subsidiaries) of the following Contracts categories to which the Company or any Company Subsidiary is a party:party or by which it is bound as of the date of this Agreement.
(ia) any partnership, joint venture, labor contracts or similar Contract that involves the sharing of profits or lossescollective bargaining agreements;
(iib) any Contract with a Significant Customer material manufacturing, distribution, franchise, license, sales, agency or Significant Supplieradvertising contracts;
(iiic) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in contracts which require the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,00050,000 per year for (i) the purchase of inventory, materials, supplies or equipment which are not cancelable (without material penalty, cost or other liability) within one (1) year, (ii) management, consulting, service or other similar contracts, (iii) advertising or marketing agreements or arrangements, and (iv) other contracts made in the ordinary course of business involving annual expenditures or liabilities in excess of $50,000 which are not cancelable (without material penalty, cost or other liability) within ninety (90) days, other than purchase orders made in the ordinary course of business consistent with past practice;
(d) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments proving for the lending of money, whether as borrower, lender or guarantor;
(e) contracts (other than Leases) containing covenants limiting the freedom of the Company or any Company Subsidiary to engage in any line of business or compete with any Person or operate at any location;
(f) joint venture or partnership agreements or joint development or similar agreements;
(g) agreement, contract or other arrangement with (i) the Company or any affiliate of the Company (other than any Company Subsidiary) or (ii) any current or former officer, director or employee of the Company or any Company Subsidiary or any affiliate of the Company or of any Company Subsidiary (other than non-compete or intellectual property agreements);
(vh) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee material lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to person under which (i) the Company will have or any material outstanding obligation after the date of this Agreement;
Company Subsidiary is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible property owned by any person or (xiii) any Contract with a Governmental Authority or pursuant to which the Company participates or any Company Subsidiary is a lessor or sublessor of, or makes available for use by any person, any tangible personal property owned or leased by the Company or any Company Subsidiary, in any program involving a Governmental Authority;
(xii) any Contract pursuant to such case which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a has an aggregate future or potential Liability liability or receivable, as the case may be, and is not terminable by the Company or such Company Subsidiary by notice of not more than sixty (60) days;
(i) contracts or other instruments (including so-called take-or-pay or keepwell agreements) under which (i) any person has directly or indirectly guaranteed indebtedness, liabilities or obligations of the Company or any Company Subsidiary or (ii) the Company or any Company Subsidiary has directly or indirectly guaranteed indebtedness, liabilities or obligations of any person (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(j) contracts or other instruments under which the Company or any Company Subsidiary has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any person involving aggregate payments in excess of $50,000, excluding agreements between the Company and a Company Subsidiary or between Company Subsidiaries;
(k) mortgage, pledge, security agreement, deed of trust or other instrument granting a lien or other encumbrance upon any property of the Company or any Company Subsidiary;
(l) agreement or instrument involving aggregate payments in excess of $50,000 on an annual basis providing for indemnification of any person with respect to liabilities relating to any current or former business of the Company or any Company Subsidiary, or any predecessor person;
(m) contract for the acquisition, sale or lease of any assets or capital stock or other ownership interests outside the ordinary course of the business or involving aggregate payments in excess of $250,000 over 50,000 or to effect any merger of the current Contract term Company or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;any Company Subsidiary; and
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvin) any exclusive retainer agreement or arrangement with attorneys, accountants, actuaries, appraisers, investment bankers or other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectprofessional advisors.
(bo) Each any agreements or arrangements with respect to telecommunications, web hosting or similar or related matters involving payments in excess of $50,000. True copies of the Contracts set forth or required written contracts identified in Section 3.21 of the Company Disclosure Schedule have been made available to be set forth on Section 3.12Parent.
Appears in 1 contract
Sources: Merger Agreement (Tickets Com Inc)
Contracts and Commitments. (a) Section 3.12 Schedule 3.10(a) of the Company Disclosure Schedules sets forth a list identifies (with reference to each of the subsections below) certain Contracts of the Acquired Companies, including each Material Contract (as defined below). For purposes of this Agreement, each of the following Contracts shall be deemed to which the Company is be a party“Material Contract”:
(i) any partnership, joint venture, or similar Contract that involves the sharing of profits or losseswith any Governmental Body to which any Acquired Company is a party;
(ii) any Contract that limits or purports to limit the ability of any Acquired Company or any officer or employee of any Acquired Company to compete in any line of business or with a Significant Customer any Person or Significant Supplierin any geographic area or during any period of time;
(iii) any Labor AgreementContract that limits or purports to limit the ability of any Acquired Company or any officer or employee of any Acquired Company to solicit any customers;
(iv) (A) any employment, severance, incentive compensation, retention, change Contract between or among any Acquired Company and the Company or any Affiliate of control, or consulting the Company and (B) any Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)Related Party;
(v) any Contract with another Person concerning confidentiality that is terminable upon or non-competition materially limiting prohibits a change of ownership or restricting the ability control of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classificationAcquired Company;
(vi) any Contract for capital expenditures or the sale acquisition or construction of fixed assets requiring the payment by any Acquired Company of the assets an amount in excess of the Company, other than in the Ordinary Course of Business$125,000;
(vii) any Contract relating to the acquisition by the Company of any operating business Acquired Company that provides for an increased payment or benefit, or accelerated vesting, upon the execution hereof or the assets Closing or capital stock of any other Person, other than in connection with the Ordinary Course of Businesstransactions contemplated hereby;
(viii) any agreement relating to the incurrence, assumption, surety Contract granting any Person a Lien on all or guarantee any part of any Indebtedness (excluding any agreement to guarantee lease payments Asset of the Company) Transferred Business or to mortgaging, pledging or otherwise placing a Lien (any Acquired Company other than a Permitted Lien) on any portion equipment leases entered into in the ordinary course of the assets of the Companybusiness;
(ix) any Contract under which the Company has made advances or loans relating to any other Person completed business acquisition by any Acquired Company within the last thirty-six (which shall not include advances made to an employee of the Company in the Ordinary Course of Business)36) months;
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreementcollective bargaining agreement;
(xi) any Contract with for the employment of any officer, individual employee or other Person on a Governmental Authority full-time or pursuant to which the Company participates consulting basis providing for base compensation in any program involving a Governmental Authorityexcess of $150,000 per annum;
(xii) any Contract pursuant relating to which Indebtedness, the Company is granted a lease in, a sublease inborrowing of money, or to mortgaging, pledging shares on any of the right to use Acquired Companies, or occupy otherwise placing a Lien on any Leased Real Property facilityof the Assets;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise granting to any acceleration Person an option or additional rights a first refusal, first-offer, exclusivity, or obligations under such Contract similar preferential right to purchase or prohibit or delay the consummation acquire any Assets of the transaction contemplated by this Agreementany Acquired Company;
(xiv) any other Contract that (A) involves a future contains “most favored nation” or potential Liability or receivable, as equivalent preferential pricing terms for the case may be, in excess benefit of $50,000 on an annual basis or in excess of $250,000 over any Person other than the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ noticeAcquired Companies;
(xv) Contracts under which the any Contract with any Agent, distributor, or Representative of any Acquired Company that is a licensor not terminable without penalty on ninety (90) days’ or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business)less notice;
(xvi) any Contract providing for the indemnification of any officer, director, employee, or other agreement Person by any Acquired Company other than in the ordinary course of business and in the Acquired Company’s Organizational Documents; and
(not described in clauses xvii) any joint venture or partnership Contract of any Acquired Company or any other Contract providing for the sharing of any profits by any Acquired Company.
(b) Except as disclosed on Schedule 3.10(b) of the Disclosure Schedules, (i) each Material Contract is in full force and effect and enforceable by each Acquired Company party thereto in accordance with its respective terms, (ii) no Acquired Company is, and to the Knowledge of the Company, no other party to a Material Contract is, in breach or default under any Material Contract, (xviiiii) above) to the termination Company’s Knowledge, no event has occurred that, with notice or the passage of which time or both, would reasonably be expected to have (A) constitute a Company breach or default under, (B) give any Person the right to receive or require a refund, rebate, chargeback, penalty, or change in delivery schedule under any Material Adverse Effect.
Contract, (bC) Each give any Person the right to accelerate the maturity or performance of any Material Contract, or (D) give any Person the right to cancel, terminate, or modify any Material Contract (exclusive of any right to do so at any time upon prior notice independent of the Contracts set forth occurrence of such event), and (iv) no Acquired Company has given, nor has any Acquired Company received from any other Person, any written notice or required to be set forth on Section 3.12other written communication regarding the existence of any material breach of, or material default under, any Material Contract.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 3.11 of the Company Disclosure Schedules sets forth a list of the following Contracts to which the Company is a party:
(i) any partnership, joint venture, or similar Contract that involves the sharing of profits or losses;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iviii) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000); change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(viv) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(viv) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(viivi) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viiivii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the CompanyCompany or credit card or commercial card agreements) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ixviii) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(xix) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xix) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xiixi) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiiixii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xivxiii) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xvxiv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvixv) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effect.
(b) Each of the Contracts set forth or required to be set forth on Section 3.123.11
Appears in 1 contract
Sources: Stock Purchase Agreement (Elite Express Holding Inc.)
Contracts and Commitments. (a) Section 3.12 Except as set forth on Schedule 4.10(a), as of the Company Disclosure Schedules sets forth a list of the following Contracts to which the date hereof, no Acquired Company is a partyparty to or bound by any:
(i) any partnershipCompany IP Agreements, joint venture, or similar Contract that involves the sharing other than licenses for an annual fee of profits or lossesless than $100,000;
(ii) any Contract with a Significant Customer or Significant SupplierCBA;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any evidencing Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion Acquired Company’s assets or that are a mortgage, indenture, guaranty, loan or credit agreement or security agreement;
(iv) guaranty of any obligation for borrowed money;
(v) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, for which the annual rental exceeds $250,000;
(vi) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $250,000;
(vii) stock or asset purchase agreement or similar definitive Contracts relating to the acquisition or disposition of any capital stock, business or product line, material assets or properties of any Person entered into at any time during the Companylast three (3) years or that impose any material continuing obligations or Liabilities on any Acquired Company (including any obligation with respect to any unpaid “earn out”, contingent purchase price or similar unpaid contingent payment obligation);
(viii) Contracts limiting the freedom of any Acquired Company to engage in any line of business, acquire any entity, compete with any Person or in any market or geographical area or hire or solicit any Person;
(ix) joint venture and partnership Contracts and any similar Contracts that involve co-investment between any Acquired Company, on the one hand, and any third party, on the other hand;
(x) Contract with any officer, employee or individual consultant or other person on a full-time or consulting basis (A) providing for fixed compensation in excess of $150,000 per annum or (B) providing for change in control, retention, transaction bonus or similar arrangements;
(xi) Contract with any Governmental Body;
(xii) contract or group of related contracts with the same party for (a) the purchase by the Acquired Companies of products or services or (b) sale by the Acquired Companies of products or services, in each case under which the Company undelivered balance of such products and services has made advances or loans to any a selling price in excess of $250,000 (other Person (which shall not include advances made to an employee of the Company than purchase orders entered into in the Ordinary Course of Business).
(xiii) Contracts (i) with any Significant Customer or involving annual revenue to the Acquired Companies in excess of $1,000,000 per year or (ii) with any Significant Vendor or involving purchases of goods and/or services by the Acquired Companies in excess of $500,000 per year;
(xxiv) Contracts involving capital expenditure obligations of the Acquired Companies in excess of $250,000;
(xv) Contracts with Significant Vendors that contain “take-or-pay,” minimum purchase, or similar payment obligations or Contracts that (A) grant to any Contract third party any “most favored nation” status, (B) provide for any exclusive license, supply or distribution arrangement or other exclusive rights or (C) grant any rights of first refusal, rights of first offer, rights of first negotiation or similar rights;
(xvi) Contracts that include any requirement that any Acquired Company provide indemnification to any other Person, other than agreements entered into in the Ordinary Course of Business consistent with past practice;
(xvii) Contracts relating to the settlement, conciliation or similar agreement with any Governmental Authority relating to the resolution, settlement or disposition of any claim Litigation or action or pursuant threatened Litigation, in each case, to which the Company will have any material outstanding obligation after the date of this Agreementextent such Contracts contain ongoing obligations;
(xixviii) any Contract with a Governmental Authority or pursuant Contracts relating to which the Company participates in any program involving a Governmental AuthorityAffiliated Transactions;
(xiixix) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;Quality Agreements; or
(xiiixx) binding commitments or undertakings to enter into any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis described in the Ordinary Course of Business);
(xvi) any other agreement (not described in foregoing clauses (i) to through (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectxix).
(b) Buyer has been given access to a true, correct and complete copy of all Contracts which are referred to on Schedule 4.10(a), together with all material amendments, waivers or other changes thereto.
(c) No material breach or material default by any Acquired Company, or, to the Company’s knowledge, the other party or parties thereto, exists under any contract listed on Schedule 4.10(a) (each, a “Material Contract” and, collectively, the “Material Contracts”). No event has occurred that with notice or lapse of time or both would constitute such a material breach or material default thereunder by any Acquired Company or, to the Company’s knowledge, any other party thereto. No Acquired Company has received any written, or to the Company’s knowledge, oral communication, alleging material noncompliance with, material deficiency under, notice of material breach or material default or event that with notice or lapse of time or both would constitute a material breach or material default by any Acquired Company under any Material Contract, including any quality-related, regulatory-related or performance-related nonconformance. No Acquired Company has received any written, or to the Company’s knowledge, oral communication, that any counterparty to any Material Contract intends or has threatened to terminate, cancel, suspend, audit, re-audit, transition business away from, adversely modify, refuse renewal of or revoke any Material Contract. Each of the Material Contracts set forth is in full force and effect and legal, valid and binding on, and enforceable against, the Company or required one of its Subsidiaries, as applicable, and, to be set forth the Company’s knowledge, on Section 3.12and against the other party or parties thereto, in accordance with its terms, subject to bankruptcy, insolvency, reorganization and other Laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
Appears in 1 contract
Sources: Securities Purchase Agreement (Perimeter Solutions, Inc.)
Contracts and Commitments. (a) Except as set forth in Section 3.12 2.6(a) of the Company Disclosure Schedules sets forth a list Schedule, none of the following Contracts to which the Company Companies is a party:
party to or is bound by: (i) any partnership, joint venture, or similar Contract that involves the sharing of profits or losses;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess contract or commitment requiring the expenditure or series of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability related expenditures of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, funds in excess of $50,000 on an annual basis (other than purchase orders in the ordinary course of business for materials necessary for the Companies to complete then existing contracts or purchase orders); (ii) any agreement, contract or commitment requiring the payment for goods or services whether or not such goods or services are actually provided or the provision of goods or services at a price less than cost to the Companies of producing or purchasing such goods or providing such services; (iii) any loan or advance to, or investment in, any Person or any agreement, contract, commitment or understanding relating to the making of any such loan, advance or investment; (iv) any agreement or obligation with the Shareholder or any of its Affiliates; (v) any Debt Obligations; (vi) any labor union, management service, employment, consulting or other similar type contract or agreement; (vii) any agreement, contract or commitment that would limit the freedom of the Companies or its successors following the Closing Date to engage in excess any line of $250,000 over business, to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any of the current Contract term Assets or to compete with any Person or to engage in any business or activity in any geographic area; (Bviii) has a term greater than one year any agreement, lease, contract or commitment or series of related agreements, leases, contracts or commitments not entered into in the ordinary course of business or, except for agreements to purchase or sell goods and canservices entered into in the ordinary course of business of the Companies, not be cancelled cancellable by the Company, as applicableCompanies, without penalty to the Companies, within 30 days; (ix) any agreement or further payment and without more than thirty contract obligating any of the Companies or that would obligate or require any subsequent owner of any of the Companies to provide for indemnification or contribution with respect to any matter; (30x) days’ notice;
any sales, distributorship, agency or similar agreement relating to the products sold or services provided by any of the Companies; (xvxi) Contracts under which the Company is a licensor any license, royalty or otherwise grants to a third party any rights to use any Intellectual Property similar agreement; or (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvixii) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would agreement, contract or commitment that might reasonably be expected to have be Material to the Companies or the business of the Companies taken as a Company Material Adverse Effectwhole.
(b) Each Except as set forth in Section 2.6(b) of the Contracts Disclosure Schedule, none of the Companies is in breach of, or in default (and the Shareholder has no Knowledge of any event or circumstance that with notice, or lapse of time or both, would constitute an event of default) under, any Material provision of any of the contracts or agreements listed in Section 2.6 of the Disclosure Schedule including, without limitation, the SB Credit Agreement. All of the contracts and agreements listed in Section 2.6 of the Disclosure Schedule are in full force and effect. To the Knowledge of the Shareholder, there are no pending or threatened disputes with respect to any of the contracts or agreements listed in Section 2.6 of the Disclosure Schedule.
(c) Except as set forth in Section 2.6(c) of the Disclosure Schedule, the enforceability of the contracts and agreements listed in Section 2.6 of the Disclosure Schedule will not be affected in any manner by the execution and delivery of this Agreement or required to be set forth on Section 3.12the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Share Purchase Agreement (Allis Chalmers Energy Inc.)
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules sets Except as set forth a list of the following Contracts to which on Schedule 3.15, the Company is not a partyparty to, or bound by, whether written or oral, any active, ongoing or otherwise in effect:
(i) any partnership, joint venture, Contract involving a potential commitment or similar Contract that involves payment by the sharing Company in excess of profits or losses$250,000 (excluding purchase orders entered into in the Ordinary Course of Business);
(ii) any Contract with a Significant Customer or Significant SupplierCollective bargaining agreements;
(iii) Agency (foreign or domestic), broker, dealer, distributor, sales representative, marketing or other similar Contracts with any Labor Agreementparty other than Parent;
(iv) Contract for the employment of any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, individual employee or employee requiring an annual other Person on a full-time, consulting or independent contractor basis involving payment of cash compensation (excluding non-guaranteed sales commissions) by the Company in excess of $100,000 (or, 50,000 in the case aggregate during any twelve (12) month period (other than any employment offer letter or consulting Contract in such form as has been Made Available and is terminable “at will” without any contractual obligation on the part of a the Company to provide for severance, incentive compensationretention, retention change-of-control or change of control agreement, an aggregate payment in excess of $100,000similar compensation or benefits);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Companyincluding guaranty arrangements) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted LienLiens) on any portion of the assets its assets, or any guaranty of the Companyan obligation of a third party;
(ixvi) any Contract under which relating to Company Transaction Expenses;
(vii) royalty, dividend or similar arrangement based on the revenues or profits of the Company has made advances or loans any contract or agreement involving fixed price or fixed volume arrangements;
(viii) Contract which contains any provisions requiring the Company to indemnify any other Person (which shall not include advances made to an employee of party, except for indemnification obligations undertaken by the Company in the Ordinary Course of Business)Business to its customers and suppliers on an arms’ length basis;
(ix) Contract under which the Company is lessee of, or holds or operates, any property, real or personal, owned by any other party calling for payments in excess of $10,000 annually or under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(x) any Contract relating to or group of related Contracts (excluding purchase orders entered into in the settlement, conciliation or similar agreement Ordinary Course of Business with any Governmental Authority of any claim or action or pursuant to which customers and/or suppliers on an arms’ length basis) that are not cancelable by the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more on not less than thirty ninety (3090) days’ notice;
(xi) Contract relating to the ownership of or investment in any business or enterprise (including investments in joint ventures and minority equity investments);
(xii) Contract limiting the ability of the Company, or that would limit the ability of Buyer or any of its Affiliates after the Closing Date, to freely engage in any line of business or with any Person anywhere in the world or during any period of time, including any Contract containing an exclusivity obligation, most-favored-nation provision or “best price” obligation enforceable against the Company;
(xiii) Settlement document or Contracts with respect to any Legal Proceeding that contain any outstanding obligations of the Company;
(xiv) Contract pursuant to which it subcontracts work to third parties;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party Contract with any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business)Governmental Authority;
(xvi) power of attorney;
(xvii) acquisition agreement, whether by merger, stock or asset sale or otherwise;
(xviii) Contract contemplating the collection, transfer and/or processing by the Company of identified or identifiable data of any natural person;
(xix) Real Property Leases;
(xx) Contracts with Licensed Providers, hospitals, health systems and other agreement health care provider organizations, including but not limited to advisory board agreements and medical director agreements;
(not described in clauses xxi) Contracts that support or are otherwise related to clinical research or trials;
(xxii) Contracts that are or contain business associate agreements; or
(xxiii) Contracts with any Third Party Payor, charitable fund, or similar organization.
(b) The Contracts required to be disclosed on Schedule 3.15 or Schedule 3.26, are referred to herein as the “Company Contracts”. The Company has Made Available true and correct copies of each Company Contract, together with all amendments, waivers and other changes thereto (all of which are disclosed on Schedule 3.15 or Schedule 3.26). Schedule 3.15 contains an accurate and complete description of all material terms of all oral Contracts referred to therein. Except as disclosed on Schedule 3.15, (i) no Company Contract has been, to the Company’s knowledge, breached by the other party, and the Company has no knowledge of any planned breach by any other party to any Company Contract, (xvii) aboveii) the termination Company has performed all of which the obligations required to be performed by it on or before the date hereof in connection with the Company Contracts and is not in material default under or in breach of any Company Contract, (iii) to the Company’s knowledge, no event or condition has occurred or arisen which, with the passage of time or the giving of notice or both, would reasonably be expected to have result in a material default or breach thereunder, and (iv) each Company Material Adverse Effect.
(b) Each Contract is in full force and effect and is a legal, valid, binding, and enforceable obligation of the Contracts set forth Company and, to the knowledge of the Company, the other party, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or required to be set forth on Section 3.12similar Laws affecting creditors’ rights generally and by general equitable principles.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 Except as listed and described in Schedule 3.7, Schedule 3.13, Schedule 3.17 or Schedule 3.22 of the Company Company's Disclosure Schedules sets forth a list of the following Contracts to which Schedule and except as will be terminated upon Closing or as are terminable on less than ninety (90) days' notice without penalty, the Company is not a partyparty to any written or oral:
(i) agreement, contract or commitment with any partnershippresent or former Shareholder, joint venturedirector, officer, employee or similar Contract that involves consultant or for the sharing employment of profits or lossesany person, including any consultant;
(ii) agreement, contract, commitment or arrangement with any Contract with a Significant Customer labor union or Significant Supplierother representative of the Company's employees;
(iii) agreement, contract or commitment for the future purchase of, or payment for, supplies or products, or for the performance of services by a third party, involving in any Labor Agreementone case $50,000 or more;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate contract or commitment to sell or supply products or to perform services, involving in any one case $50,000 or more;
(v) agreement, contract or commitment not otherwise listed on the Company's Disclosure Schedule and continuing over a period of more than one year from the date hereof or exceeding $50,000 in value;
(vi) representative or sales agency agreement, contract or commitment;
(vii) Real Property or personal property lease providing for a lease payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of 50,000 per year under which the Company to enter into is either the lessor or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Businesslessee;
(viii) note, debenture, bond, conditional sale or equipment trust agreement, letter of credit agreement, loan agreement or other contract or commitment for the borrowing or lending of money (including loans to or from officers, directors, Shareholders, or any members of their immediate families), agreement relating to or arrangement for a line of credit, or guarantee, pledge or undertaking of the incurrence, assumption, surety or guarantee indebtedness of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Companyperson;
(ix) agreement, contract or commitment for any Contract under which the Company has made advances charitable or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business)political contribution;
(x) agreement, contract, or commitment for any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority capital expenditure in excess of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement$50,000;
(xi) any Contract with a Governmental Authority agreement, contract or pursuant to which commitment limiting or restraining the Company participates from engaging or competing in any program involving a Governmental Authority;lines of business with any person; or
(xii) any Contract pursuant to other agreement, contract or commitment which the Company is granted a lease in, a sublease in, or the right failure to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would fulfill could reasonably be expected to have a Company Material Adverse EffectEffect on the Company.
(b) Each of the agreements, contracts, commitments, leases and other instruments, documents and undertakings listed on Schedule 3.7, Schedule 3.13 or Schedule 3.17 of the Company's Disclosure Schedule (a "Listed Contract") is valid and enforceable in accordance with its terms. The Company is not in violation or breach of or default under any Listed Contract, except where such violation, breach or default could not reasonably be expected to have a substantial impact on the Listed Contract. To the Company's Knowledge, no party other than the Company is in default in the performance, observance or fulfillment of any material obligation, covenant or condition contained in a Listed Contract. To the Company's Knowledge no party to any Listed Contract intends to terminate or amend the terms thereof or to refuse to renew any such Listed Contract upon the expiration of its term. Except for those Listed Contracts set forth or required to be denoted with an asterisk (*) as set forth on Section 3.12Schedule 3.17 of the Company's Disclosure Schedule, no Listed Contract requires the consent of any other contracting party to prevent a breach of, or default under, or a termination, change in terms or conditions or modification of, any Listed Contract as a result of the consummation of the transactions contemplated hereby.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 5.19 of the Company Disclosure Schedules sets forth a contains an accurate and complete list of all of the following Contracts to which the a Group Company is a party:party (other than Employee Plans) (collectively with any Related Party Arrangement, the “Material Contracts”):
(ia) any partnership, joint venture, or similar Contract that involves the sharing of profits or losses;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than purchase orders with customers entered into in the Ordinary Course of Business, any Contracts (or group of related Contracts) (i) with a Material Customer, (ii) with a Material Supplier or (iii) for the furnishing or receipt of products or services, in each case, which provides for required annual payments to or by the Company Group in excess of $250,000;
(viib) employment (other than offer letters entered into in the Ordinary Course of Business that provide for “at will” employment and do not include severance or termination benefits) and consulting agreements providing for annual compensation of in excess of $100,000 per annum;
(c) bonus, profit-sharing, percentage compensation, deferred compensation, pension, unit purchase or unit option plans and similar Contracts with or relating to the Personnel of the Company Group;
(d) Contracts (or group of related Contracts) (i) under which any Group Company has created, incurred, assumed or guaranteed any Debt with a principal amount in excess of $250,000, (ii) under which any Group Company has permitted any of its assets to become Encumbered or (iii) limiting the ability of any Group Company to incur Debt (including guarantees) or incur liens;
(e) any material Contract relating to the acquisition by the Company of any operating business Intellectual Property or the assets or capital stock of any other PersonIT Assets, other than non-exclusive licenses (i) granted to customers in the Ordinary Course of Business and (ii) for off-the-shelf shrinkwrap, clickwrap or similar commercially available non-custom software with annual fees of less than $150,000.
(f) Contracts relating to any joint venture, partnership, strategic alliance or similar arrangements regarding the sharing of profits or losses with any Person;
(g) Contracts pursuant to which any Group Company is a lessor or lessee of any real property (including the Real Property Leases) or any machinery, equipment, motor vehicles, office furniture, fixtures or other personal property in excess of $150,000 per annum;
(h) Contracts that involve or relate to the acquisition or disposition of a business or assets, properties or securities of, or any other investment in, another Person other than a Group Company (whether by merger, sale of stock, sale of assets, lease, license or otherwise) or with respect to the sale or transfer of any asset of any Group Company at any time during the three (3) year period prior to the date of this Agreement, except in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which any Group Company has ongoing obligations (including continuing economic obligations with respect to the Company will have payment of any material outstanding obligation after the date amounts in respect of this Agreementearn-outs, deferred purchase price or purchase price adjustments) or liabilities;
(xii) any Contract with a Governmental Authority or pursuant to which the Company participates Contracts requiring capital expenditures in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or amount in excess of $250,000 over the current Contract term in any 12-month period;
(j) Contracts that (i) require any Group Company to do business on an exclusive basis or restricts or limits any Group Company from owning, managing, soliciting or operating any business or in any geographical location, (ii) contain minimum payment obligations, take-or-pay obligations or performance guarantees, in each case, by a Group Company, (iii) grant any right of first refusal or right of first offer or similar right to third parties or (Biv) provide for any payments, rights or obligations that are conditioned, in whole or in part, on a change of control with respect to a Group Company;
(k) except with respect to the operations and Contracts relating to Nantong, Contracts, including any sale or purchase orders, providing for any payments denominated in any currency other than United States dollars;
(l) Contracts that limit or purport to limit the payment of dividends or distributions in respect of the Units or the capital stock of any Subsidiary, the pledging of the Units or the capital stock of any Subsidiary or the incurrence of indebtedness for borrowed money or guarantees by any Group Company or the ability of any Group Company in any material respect to pledge, sell, transfer or otherwise dispose of any material amount of assets or business;
(m) Contracts that are with a Governmental Entity;
(n) collective bargaining or similar agreements with any labor organization; and
(o) Contracts that reflect a settlement of any threatened or pending Proceeding either (i) in excess of $250,000 and entered into since January 1, 2019 or (ii) containing continuing obligations or restrictions on any Group Company. A true and complete copy of each Material Contract (including all exhibits, schedules, and annexes and any amendments, modifications and supplements thereto) has a term greater than one year been made available to Purchaser prior to the date hereof. All of the Material Contracts are in full force and cannot be cancelled by effect and are valid and enforceable in accordance with their terms against the applicable Group Company party thereto and, to the Knowledge of the Company, as applicableagainst each other party thereto. Neither the applicable Group Company party thereto nor, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which to the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in Knowledge of the Ordinary Course of Business);
(xvi) Company, any other agreement party thereto, has breached any material provision of, or is in material default under the terms of, nor does any condition exist which (not described in clauses (i) with or without notice or lapse of time, or both), would cause the applicable Group Company party thereto or, to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effect.
(b) Each Knowledge of the Contracts set forth or required Company, any other party, to be in material default under any of the Material Contracts. Except as set forth on Section 3.125.03 of the Disclosure Schedules, the consummation of the transactions contemplated by this Agreement shall not afford any other party the right to terminate any such Material Contract.
Appears in 1 contract
Contracts and Commitments. Except as listed and described in the Disclosure Schedule or the Company Financial Statements, the Company is not a party to, nor is it or its assets bound by any written or oral covenant, contract, agreement or understanding (a "Contract"), including the following:
(a) Section 3.12 any Contract with any present or former stockholder, director, officer, employee or consultants;
(b) any Contract with any labor union or other representative of employees;
(c) any Contract for the future purchase of, or payment for, supplies or products, or for the performance of services by a third party, involving payment or potential payment by the Company Disclosure Schedules sets forth a list of the following Contracts $10,000 or more under any one Contract or series of related Contracts;
(d) any Contract, including, without limitation, any outstanding quotations, bids or proposals, to sell goods or to perform services in an aggregate amount in excess of $10,000;
(e) any conditional sale agreement or lease under which the Company is either the seller or purchaser, lessor or lessee, involving annualized payments or potential payments by or to the Company that is in excess of $10,000;
(f) any Contract (including, without limitation, any note, debenture, bond, conditional sale or equipment trust agreement, letter of credit agreement or loan agreement) for the borrowing or lending of money more than $10,000 (including, without limitation, those to or from officers, directors or stockholders of the Company, or any affiliates or members of their immediate families, for a party:line of credit, or for a guarantee, security, indemnitee, pledge or undertaking of the indebtedness or obligations of any other person);
(g) any Contract for any charitable or political contribution;
(h) any Contract for any capital expenditure involving future payments, which, together with future payments under all other existing Contracts for the same capital project, are in excess of $10,000;
(i) any partnership, joint venture, Contract limiting or similar Contract that involves restraining the sharing Company from engaging or competing in any lines of profits or lossesbusiness with any person;
(iij) any Contract with a Significant Customer license, franchise, distributorship or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating in whole or in part to the acquisition any ideas, technical assistance or other know-how of or used by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ixk) any Contract under greater than $10,000 which is expected to continue for more than six months from the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business)date hereof;
(xl) any Contract relating to not made in the settlement, conciliation or similar agreement with any Governmental Authority ordinary course of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreementbusiness;
(xim) any Contract guaranty, direct or indirect, of any person of any contract, lease or agreement in an amount greater than $10,000 entered into by the Company; Except as may be disclosed on the Disclosure Schedule: each of the Contracts listed on the Disclosure Schedule is valid and enforceable in accordance with a Governmental Authority or pursuant its terms; to which the best of the Company's Knowledge, the Company participates and the other parties thereto are in any program involving a Governmental Authority;
(xii) any Contract pursuant to which substantial compliance with the provisions thereof; except as may be disclosed on the Disclosure Schedule, neither the Company nor any other party is granted a lease in, a sublease in, (or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change by reason of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction transactions contemplated by this Agreement;
(xiv, will be) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis default in the Ordinary Course performance, observance or fulfillment of Business);
any obligation, covenant or condition contained therein and no event has occurred or is anticipated to occur (xvi) any other agreement (not described in clauses (i) to (xvii) above) including the termination of which would reasonably be expected to have a Company Material Adverse Effect.
(b) Each consummation of the Contracts set forth transactions contemplated by this Agreement) which with or required to be set forth on Section 3.12without the giving of notice or lapse of time, or both, would constitute a default or give the right of termination thereunder.
Appears in 1 contract
Sources: Merger Agreement (Elinear Inc)
Contracts and Commitments. (a) Section 3.12 2.21 of the Company Disclosure Schedules sets forth Schedule contains a complete and accurate list of all contracts and agreements (including, without limitation, oral and informal arrangements) of the following Contracts categories to which the Company is a party:party or by which it is bound as of the date of this Agreement.
(ia) any partnership, joint venture, labor contracts or similar Contract that involves the sharing of profits or lossescollective bargaining agreements;
(iib) any Contract with a Significant Customer material manufacturing, distribution, franchise, license, sales, agency or Significant Supplieradvertising contracts;
(iiic) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in contracts which require the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)25,000 per year for (i) the purchase of inventory, material, supplies or equipment which are not cancelable (without material penalty, cost or other liability) within one (1) year, (ii) management, consulting, service or other similar contracts, (iii) advertising or marketing agreements or arrangements, and (iv) other contracts made in the ordinary course of business involving annual expenditures or liabilities in excess of $25,000 which are not cancelable (without material penalty, cost or other liability) within ninety (90) days, other than purchase orders made in the ordinary course of business consistent with past practice;
(vd) any Contract with another Person concerning confidentiality promissory notes, loans, agreements, indentures, evidences of indebtedness or non-competition materially other instruments proving for the lending of money, whether as borrower, lender or guarantor, in excess of $25,000;
(e) contracts (other than Leases) containing covenants limiting or restricting the ability freedom of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market compete with any Person or customer sharing, exclusivity or market classificationoperate at any location;
(vif) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Businessjoint venture or partnership agreements or joint development or similar agreements;
(viig) agreement, contract or other arrangement with (i) the Company or any affiliate of the Company or (ii) any Contract relating to the acquisition by current or former officer, director or employee of the Company of or any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets affiliate of the Company;
(ixh) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation lease or similar agreement with any Governmental Authority of any claim or action or pursuant to person under which the Company will have any material outstanding obligation after the date of this Agreement;
(xii) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease inlessee of, or holds or uses, any machinery, equipment, vehicle or other tangible property owned by any person or (ii) the right to Company is a lessor or sublessor of, or makes available for use by any person, any tangible personal property owned or occupy leased by the Company, in any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a case which has an aggregate future or potential Liability liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year 25,000 and canis not be cancelled terminable by the Company, as applicable, without penalty or further payment and without Company by notice of not more than thirty sixty (3060) days’ noticedays for a cost of less than $10,000;
(xvi) Contracts material license, option or other agreement relating in whole or in party to the Intellectual Property described in Section 2.13 (including any license or other agreement under which the Company is a license or licensor or otherwise grants to a third party of any rights to use any such Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of BusinessProperty);
(xvij) any contracts or other agreement instrument (not described in clauses including so-called take-or-pay or keepwell agreements) under which (i) to any person has directly or indirectly guaranteed indebtedness, liabilities or obligations of the Company or (xvii) aboveii) the termination Company has directly or indirectly guaranteed indebtedness, liabilities or obligations of any person (in each case other than endorsements for the purpose of collection in the ordinary course of business);
(k) contracts or other instruments under which would reasonably be expected the Company has, directly or indirectly, made any advance, loan, extension of credit or capital contribution to, or other investment in, any person involving aggregate payments in excess of $25,000;
(l) mortgage, pledge, security agreement, deed of trust or other instrument granting a lien or other encumbrance upon any property of the Company;
(m) agreement or instrument involving aggregate payments in excess of $25,000 providing for indemnification of any person with respect to have a Company Material Adverse Effectliabilities relating to any current or former business of the Company, or any predecessor person;
(n) contract for the acquisition, sale or lease of any assets or capital stock or other ownership interests outside the ordinary course of the business or involving aggregate payments in excess of $25,000 or to effect any merger of the Company; and
(o) any exclusive retainer agreement or arrangement with attorneys, accountants, actuaries, appraisers, investment bankers or other professional advisors.
(bp) Each any voting agreement, right of first refusal or other agreement binding, restricting or otherwise relating to the Shares. True copies of the Contracts set forth written contracts identified in Section 2.21 of the Disclosure Schedule have been delivered or required made available to be set forth on Section 3.12Buyer.
Appears in 1 contract
Sources: Stock Purchase Agreement (Smith Micro Software Inc)
Contracts and Commitments. (a) Section 3.12 4.21 of the Company Disclosure Schedules sets forth contains a true and correct list of all of the following Contracts (collectively, the “Material Contracts”):
(a) any Contract (or group of related Contracts) for the furnishing or receipt of services, in each case, the performance of which will extend over a period of more than one year or which provides for annual payments to which or by the Company is a party:in excess of $25,000;
(b) (i) any partnership, joint venture, capital lease or similar Contract that involves the sharing of profits or losses;
(ii) any other lease or other Contract with a Significant Customer relating to equipment or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change machinery of control, or consulting Contract with any current director, officer, or employee requiring an the Company providing for annual payment of cash compensation (excluding non-guaranteed sales commissions) rental payments in excess of $100,000 (or25,000, in under which any such equipment or machinery is held or used by the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)Company;
(vc) any Contract, other than leases relating to equipment and machinery of the Company, relating to the lease or license of any assets of the Company;
(d) any Contract with another Person concerning confidentiality relating to the acquisition or non-competition materially limiting or restricting the ability disposition of (i) any business of the Company to enter into (whether by merger, consolidation, or engage in any market other business combination, sale of securities, sale of assets or line of business otherwise), or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(viii) any Contract for the sale of any of the assets asset of the Company, other than in the Ordinary Course of Business;
(viie) any Contract under which the Company is, or may become, obligated to pay any amount in respect of indemnification obligations, purchase price adjustment or otherwise in connection with any (i) acquisition or disposition of assets or securities, (ii) merger, consolidation or other business combination, or (iii) series or group of related transactions or events of the type specified in clauses (i) and (ii) above;
(f) all employment, severance, consulting, bonus, profit-sharing, percentage compensation, deferred compensation, pension, welfare, retirement, equity purchase or equity option plans and agreements and commitments with or relating to the Personnel (current or former) or Affiliates of the Company;
(g) any Contract (or group of related Contracts) (i) under which the Company has created, incurred, assumed or guaranteed any Debt in excess of $25,000 or (ii) under which the Company has permitted any of its assets to become Encumbered;
(h) any Contract under which any Person has guaranteed any Debt of the Company;
(i) any Contract relating to the acquisition by any joint venture, partnership, limited liability company, strategic alliance or sharing of profits or losses with any Person to which the Company is a party or by which the Company or any of its assets are bound;
(j) any Contract containing covenants purporting to limit the freedom of the Company or any Personnel (current or former) to compete in any business or in any geographic area;
(k) any Contract relating to confidentiality (whether the Company is subject to or the beneficiary of such obligations);
(l) any agency, dealer, distributor, sales representative, service provider, marketing or similar Contract;
(m) any Contract requiring payments or distributions to any member or Personnel of the Company (current or former), or any relative or Affiliate of any operating business or the assets or capital stock of such Person;
(n) any other Person, other than Contract not made in the Ordinary Course of Business;
(viiio) any agreement relating to the incurrence, assumption, surety Contract with any Material Customer or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets Material Supplier of the Company;
(ixp) any Contract under providing for termination, retention, change in control or similar payments to its Personnel; and
(q) any other Contract (or group of related Contracts) the performance of which involves consideration in excess of $25,000 over the life of such Contract. The Company has provided Purchaser with true and complete copies of all written Material Contracts and each amendment, supplement, waiver or modification thereto, and has provided to Purchaser a written summary setting forth the terms and conditions of each oral Material Contract. All of the Material Contracts identified on, or required to be identified on Section 4.21 of the Disclosure Schedules are legal, valid, binding and enforceable in accordance with their respective terms with respect to the Company, and to the Knowledge of the Sellers, with respect to each other party to such Material Contracts, and are in full force and effect. Neither the Company has made advances or loans nor to the Knowledge of Sellers, any other Person (which shall not include advances made party thereto, has breached any provision of, or is in default under the terms of, nor does any condition exist which, with or without notice or lapse of time, or both, would cause the Company or any other party to an employee be in default under any of the Material Contracts or would constitute a breach or default or permit termination, modification or acceleration under any such Material Contract. The Company has not (i) received any written notice of cancellation or termination or, other than pursuant to the terms of such Material Contract existing as of the date hereof, change in material terms (including, pricing, term and volume) of any such Material Contract or (ii) during the two (2) years prior to the date hereof, obtained or granted any material waiver of or under any provision of any such Material Contract except for routine waivers granted or sought in the Ordinary Course of Business);
(x) . To the Knowledge of the Sellers, no default has been threatened under any Contract relating required to be listed on Section 4.21 of the settlementDisclosure Schedules. Except as set forth on Section 4.21 of the Disclosure Schedules, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction transactions contemplated by this Agreement;
(xiv) Agreement shall not afford any other Contract that (A) involves a future or potential Liability or receivable, as party the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants right to a third party terminate any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company such Material Adverse EffectContract.
(b) Each of the Contracts set forth or required to be set forth on Section 3.12
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 As of the Company Disclosure Schedules sets forth a list date of the following Contracts to which this Agreement, neither the Company nor any of its Subsidiaries is a partyparty to or bound by any:
(i) “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) with respect to the Company or any partnership, joint venture, or similar Contract that involves the sharing of profits or lossesits Subsidiaries;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iiiA) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the disposition or acquisition by the Company or any of any operating business or the its Subsidiaries of a material amount of assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii1) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement, other than the sale of inventory in the ordinary course of business, or (2) prior to the date of this Agreement, that contains any material ongoing obligations (including sale of inventory, indemnification, “earn-out” or other contingent obligations) that are still in effect that are expected to result in claims in excess of $1,000,000 or (B) pursuant to which the Company or any of its Subsidiaries will acquire any material ownership interest in any other person or other business enterprise other than the Company’s Subsidiaries;
(iii) collective bargaining agreement or Contract with any labor union, trade organization or other employee representative body (other than any statutorily mandated agreement in a non-U.S. jurisdiction);
(iv) Contract establishing any joint venture, partnership, alliance, development, co-development, co-promotion or similar profit-sharing, or collaboration in each case that contemplates payments in excess of $1,000,000 in any calendar year;
(v) Contract (A) prohibiting or materially limiting the right of the Company or any of its Subsidiaries to compete in any line of business or to conduct business with any Person or in any geographical area, (B) obligating the Company or any of its Subsidiaries to purchase or otherwise obtain any material product or service exclusively from a single party, to purchase a specified minimum amount of goods or services, or sell any material product or service exclusively to a single party or (C) under which any Person has been granted the right to manufacture, sell, market or distribute any Product on an exclusive basis to any Person or group of Persons or in any geographical area;
(vi) Contracts (A) in respect of Indebtedness for borrowed money in excess of $1,000,000 other than intercompany loans among the Company and its Subsidiaries or (B) pursuant to which any assets of the Company or any of its Subsidiaries are subject to any Liens;
(vii) Contract (other than a Company Plan) between the Company, on the one hand, and any Affiliate of the Company (other than a Subsidiary of the Company), on the other hand;
(viii) Contract relating to the voting or registration of any securities;
(ix) Contract containing a right of first refusal, right of first negotiation or right of first offer with respect to any equity interests or assets that have a fair market value or purchase price of more than $1,000,000 or any equity interests;
(x) Contract under which the Company or any of its Subsidiaries is expected to make annual expenditures or receive annual revenues in excess of $2,500,000 in the aggregate;
(xi) any Contract corporate integrity agreements, consent decrees, deferred prosecution agreements, or other similar types of Contracts with a Governmental Authority Bodies that have existing or pursuant to which the Company participates in any program involving a Governmental Authoritycontingent performance obligations;
(xii) Contracts of the Company or any of its Subsidiaries relating to the settlement of any litigation proceeding that provide for any continuing obligations on the part of the Company or any of its Subsidiaries;
(xiii) Contracts of the Company or any of its Subsidiaries that prohibit, limit or restrict the payment of dividends or distributions in respect of the capital stock of the Company or any of its Subsidiaries or otherwise prohibit, limit or restrict the pledging of capital stock of the Company or any of its Subsidiaries or prohibit, limit or restrict the issuance of guarantees by the Company or any of its Subsidiaries other than the Company Equity Plans or any Contracts evidencing awards granted under the Company Equity Plans;
(xiv) Contracts with third party manufacturers and suppliers for the manufacture and/or supply of materials or products in the supply chain for Products that involve payments in excess of $1,000,000 during the current or a subsequent fiscal year;
(xv) Contract pursuant to which the Company is granted or any Company Subsidiary has contingent obligations that upon satisfaction of certain conditions precedent will result in the payment by the Company or any Company Subsidiary of more than $2,500,000 in the aggregate over a lease in12-month period, a sublease inin either milestone or contingent payments or royalties, upon (A) the achievement of regulatory or commercial milestones or (B) the right to use receipt of revenue or occupy any Leased Real Property facilityincome based on product sales;
(xiiixvi) any Contract that requires which provides for a consent to loan or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, advance in excess of $50,000 on an annual basis to any employee of the Company or in excess any temporary agency employee, consultant or other independent contractor of $250,000 over the current Contract term Company or (B) has a term greater any Company Subsidiary, other than one year travel, business and cannot be cancelled by similar advances to the Company, as applicable, without penalty ’s employees in the ordinary course of business consistent with past practice or further payment and without more than thirty (30loans under the Company 401(k) days’ noticePlan;
(xvxvii) Contracts under which the Company is hedging, derivative or similar Contract (including any interest rate, currency or commodity swap agreement, cap agreement, collar agreement or any similar Contract designed to protect a licensor Person against fluctuations in interest rates, currency exchange rates or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Businesscommodity prices);
(xvixviii) Contract with any contract research organization and resulted in the payment by the Company or any Company Subsidiary of more than $2,500,000 in calendar year 2023 or is expected to involve payment by the Company or any Company Subsidiary of more than $2,500,000 in calendar year 2024;
(xix) any other agreement IP Contract; or
(not xx) Contract to enter into any of the foregoing. Each such Contract described in clauses (i) through (xxiii) above of this (a) or excluded therefrom due to the exception of being filed as an exhibit to the Company SEC Documents, together with each Company Lease listed in Section 3.11(b) of the Company Disclosure Letter but excluding, in all cases, each Company Plan, is referred to herein as a “Company Material Contract.”
(xviii) above) the termination of which Except as would reasonably be expected to not have a Company Material Adverse Effect.
, neither the Company nor any of its Subsidiaries (bA) Each is, or has received written notice that any other party to any Company Material Contract is, in violation or breach of or default (with or without notice or lapse of time or both) under or (B) has waived or failed to enforce any rights or benefits under any Company Material Contract to which it is a party or any of its properties or other assets is subject, (ii) there has occurred no event giving to others any right of termination, amendment or cancellation of (with or without notice or lapse of time or both) any such Company Material Contract and (iii) each such Company Material Contract is in full force and effect and is a legal, valid and binding agreement of, and enforceable against, the Company or any of its Subsidiaries, and, to the Knowledge of the Contracts set forth Company, each other party thereto. As of the date of this Agreement, no party to any Company Material Contract has given any written notice of termination or required cancellation of any Company Material Contract or that it intends to be set forth on Section 3.12seek to terminate or cancel any Company Material Contract (whether as a result of the Contemplated Transactions or otherwise).
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 Schedule 3.16 of the Company Disclosure Schedules sets forth a true, correct and complete list (as of the following Contracts to which the Company is a party:
(i) any partnership, joint venture, or similar Contract that involves the sharing of profits or losses;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
) of the following (xicollectively, the "Material Company Agreements"): (i) Company Agreements having, as to any Contract with one such Company Agreement, a Governmental Authority or pursuant value to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on 250,000, (ii) Company Agreements which represent an annual basis obligation or liability of the Company or any Company Subsidiary for the payment of an amount in excess of $250,000 over the current Contract term or (B) has a term greater per year, other than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than those terminable on thirty (30) days’ ' or less notice by the Company or Company Subsidiary without penalty or other financial obligation, (iii) all franchising and licensing agreements which represent an obligation or liability of the Company or any Company Subsidiary for the payment of an amount in excess of $10,000, (iv) any contract or agreement with any agent, distributor or representative which is not terminable without penalty on 30 days' or less notice;
, (xvv) Contracts any joint venture or partnership agreement or other similar agreement, (vi) any contract providing for the indemnification or holding harmless of any officer, director, employee or other Person, (vii) agreements or arrangements for the purchase or sale of any assets for an amount in excess of $10,000 in the case of any individual agreement or arrangement or $50,000 in the case of all agreements or arrangements (other than in the ordinary course of business), (viii) agreements, contracts or indentures relating to the borrowing of money for an amount in excess of $25,000 (other than trade payables incurred in the ordinary course of business, (ix) leases of any real property involving annual rent of $150,000 or more, (x) all exchange traded or over-the-counter swap, forward, future, option, cap, floor or collar financial contracts, or any other interest rate or foreign currency protection contract, (xi) Company Agreements under which the Company is a licensor or otherwise grants to a any Company Subsidiary has advanced or loaned any Person (including any employee, officer, director or Affiliate) an amount in excess of $25,000, (xii) Company Agreements under which the Company or any Company Subsidiary has granted any right of first refusal or similar right in favor of any third party with respect to any rights to use material portion of the Company's or any Intellectual Property Company Subsidiary's properties or assets, (other than Intellectual Property licensed to customers on a xiii) Company Agreements containing non-exclusive basis compete covenants or other provisions that restrict the Company or any Company Subsidiary or any officer or key employee from engaging in any business in any jurisdiction, or (xiv) Company Agreements with incumbent local exchange carriers or other carriers for interconnection, special access, local or long distance termination services, signaling system 7 services, or any similar services, whether bought or sold by the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have Company or a Company Subsidiary. The Company has made available to Parent a correct and complete copy of each Material Adverse EffectCompany Agreement listed in Schedule 3.16.
(b) Each The Material Company Agreements are legal, valid, binding and enforceable in accordance with their respective terms with respect to the Company and, to the Knowledge of the Contracts Company, with respect to each other party to any of such Material Contracts, except, in each case, as such may be limited by the Enforceability Exception. Except as set forth in Schedule 3.16, there are no existing material defaults or required breaches of the Company under any Material Company Agreements (or events or conditions which, with notice or lapse of time or both would constitute a material default or breach) and, to be set forth on Section 3.12the Knowledge of the Company, there are no such material defaults (or events or conditions which, with notice or lapse of time or both, would constitute a material default or breach) with respect to any third party to any Material Company Agreements. The Company has no Knowledge of any pending or threatened bankruptcy, insolvency or similar proceeding with respect to any party to any Material Company Agreements.
Appears in 1 contract
Sources: Merger Agreement (Cypress Communications Holding Co Inc)
Contracts and Commitments. (a) Section 3.12 Except as set forth in Schedule 2.13, as of the date of this Agreement, neither the Company Disclosure Schedules sets forth a list nor any Subsidiary of the following Contracts to which the Company is a partyparty to:
(ia) any partnershippartnership agreement, joint venture, venture agreement or similar Contract that involves agreement pertaining to the sharing of profits revenues, profits, losses, costs, liabilities or lossesany other similar Contract;
(iib) any lease (whether for real or personal property) providing for annual rentals of $25,000 or more;
(c) any Contract relating to the acquisition, transfer, use, development, sharing or license of any technology or Intellectual Property other than commercially available software licensable on standard terms with a Significant Customer or Significant Supplierper copy license fee of less than $10,000;
(iiid) any Labor AgreementContract relating to the acquisition or disposition of any business or operations of any other Person (whether by merger, sale of stock, sale of assets or otherwise) entered into after November 23, 2005;
(ive) any Contract relating to the acquisition, issuance or transfer of any securities of the Company or any of its Subsidiaries;
(f) any Contract relating to any interest rate, currency or commodity derivatives or hedging transaction;
(g) any Contract which creates a future payment obligation to the Company or any of its Subsidiaries in excess of $250,000 in any calendar year;
(h) any employment, severance, incentive compensation, retention, change of control, severance or consulting Contract with any current director, officer, advisor, consultant or employee of the Company or any of its Subsidiaries requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment to such person in excess of $100,000);
(vi) any Contract with another Person concerning relating to Indebtedness in excess of $250,000, or the granting by the Company or any of its Subsidiaries of an Encumbrance (other than Permitted Encumbrances) on any of their respective assets;
(j) other than customary confidentiality agreements entered into for the specific purpose of restricting the use or non-competition disclosure of the confidential or proprietary information of any other Person, any Contract materially limiting or restricting the ability of the Company or any Subsidiary of the Company (A) to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixingwith any Person or in any area or which would so limit the freedom of the Company or Buyer (or any of their Subsidiaries) after the Closing Date, “most favored nation”(B) to acquire any product or other asset or any services from any other Person, market to sell any product or customer sharingother asset to or perform any services for any other Person or to transact business or deal in any other manner with any other Person, exclusivity or market classification(C) develop or distribute any technology;
(vik) any Contract with a Related Person (other than employee benefits and policies made available to the employees of the Company and/or its Subsidiaries generally);
(l) any Contract for the sale of any of the assets of the Company, Company or any of its Subsidiaries other than inventory in the Ordinary Course ordinary course of Businessbusiness;
(viim) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments payments) in excess of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company$250,000;
(ixn) any Contract which contains any provisions requiring the Company or any of its Subsidiaries to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products or services in the ordinary course of business consistent with past practice pursuant to the agreements of the Company and its Subsidiaries, as made available to Buyer on or prior to the date of this Agreement);
(o) any Contract under which the Company or any of its Subsidiaries has made advances or loans to any other Person in excess of $100,000 (which shall not include advances made to an employee of the Company or any of its Subsidiaries in the Ordinary Course ordinary course of Businessbusiness consistent with past practice);; or
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xivp) any other Contract that (Aor group of related Contracts) involves a future not described (or potential Liability otherwise required to be disclosed) on Schedule 2.13 and the performance of which requires aggregate payments to or receivable, as from the case may be, in excess of $50,000 on an annual basis or Company in excess of $250,000 over in any instance, other than Contracts entered into in the current ordinary course of business. Each Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which of the Company is and/or its Subsidiaries of a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effect.
(b) Each of the Contracts set forth or type required to be set forth on Section 3.12Schedule 2.13, including any such Contract entered into by the Company and/or its Subsidiaries after the date hereof and prior to the Closing (each, a "Material Contract") is the legal, valid and binding obligation of the Company and/or its Subsidiaries, enforceable against them in accordance with its terms except, in each case, as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether enforcement is sought in a proceeding at law or in equity). To Seller's knowledge, each Material Contract is the legal, valid and binding obligation of each party thereto other than the Company nor any of its Subsidiaries, enforceable against such party in accordance with its terms except, in each case, as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors' rights generally and by general equitable principles (regardless of whether enforcement is sought in a proceeding at law or in equity). Neither the Company nor any of its Subsidiaries, nor to the knowledge of Seller, any other party thereto, is in default or breach in any material respect under the terms of any Material Contract. Since November 23, 2005, neither Seller, the Company or any of its Subsidiaries has received any written notice or, to the knowledge of Seller, any other communication regarding any violation or breach of, or default under, any Material Contract. To the knowledge of Seller, no event has occurred, and no circumstance or condition exists, that (with or without notice or lapse of time) will, or would reasonably be expected to, (i) result in a material violation or breach of any of the provisions of any Material Contract, (ii) give any Person the right to declare a default or exercise any remedy under any Material Contract, (iii) give any Person the right to accelerate the maturity or performance of any Material Contract, or (iv) give any Person the right to cancel, terminate or modify in any material respect any Material Contract. No Person is renegotiating, or has a right (or, to the knowledge of Seller, has asserted a right) pursuant to the terms of any Material Contract to renegotiate, any amount paid or payable to the Company or any of its Subsidiaries under any Material Contract or any other material term or provision of any Material Contract. Seller has made available or delivered to Buyer or its Representatives accurate and complete copies of all written Material Contracts, including all amendments thereto, and Schedule 2.13 provides an accurate description of the material terms of each Material Contract that is not in written form.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules Schedule 3.22 sets forth a an accurate and complete list of the following Contracts each ------------- Contract, true and complete copies of which (for all written Contracts) have been previously provided to Graphic and Acquisition Corp., which the Company is a partya:
(i) any partnership, joint ventureContract for employment, or similar Contract that involves a non-competition agreement with any present employee of either Litho Company, or any such agreement with any former employee under which either Litho Company or any former employee has any continuing obligations to the sharing of profits or lossesother;
(ii) any Contract with a Significant Customer any labor union or Significant Supplierother representative of employees;
(iii) any Labor AgreementContract for the lease or use of equipment;
(iv) any employmentContract for the purchase, severancesale, incentive compensation, retention, change production or supply of control, goods or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation services (excluding non-guaranteed sales commissions) other than purchase orders in excess of amounts not exceeding $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,00010,000);
(v) Distributor, sales agency or vendor Contract or any Contract with another Person concerning confidentiality franchise or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classificationlicense agreement;
(vi) any Note, debenture, bond, equipment trust agreement, letter of credit agreement, loan agreement, or other Contract for borrowing or lending of money, or agreement or arrangement for a line of credit or guaranty, pledge, or undertaking of the sale indebtedness of any of the assets of the Company, other than in the Ordinary Course of Businessperson;
(vii) Contract under the terms of which either Litho Company is, directly or indirectly, liable upon or with respect thereto or is obligated in any Contract relating other way to the acquisition by the Company of provide funds with respect of, or to guaranty or assume, any operating business debt or the assets or capital stock obligation of any other Personperson or entity, other than except endorsements made in the Ordinary Course ordinary course of Businessbusiness in connection with the deposit of items for collection;
(viii) Contract for the provision of services by any agreement relating to the incurrenceindividual or entity in excess of $10,000 (including, assumptionbut not limited to, surety any Contracts with attorneys, accountants, consultants or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;contractors); or
(ix) any Contract under upon which the Company has made advances business, rights or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease inassets, or the right to use condition, financial or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to otherwise, of either Litho Company depends or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectmaterially affected.
(b) Each of the Contracts set forth listed in Schedule 3.22 is in full force and ------------- effect and there are no existing defaults or required to be events of default, real or claimed, or events which with notice or lapse of time or both would constitute a default. Except as set forth on Section 3.12Schedule 3.22, none of the ------------- Contracts listed in Schedule 3.22, in the reasonable opinion of the Litho ------------- Stockholders, contain any provision with which there is a reasonable likelihood the Litho Stockholders, the Litho Companies or any other party thereto will be unable to comply. Except as reflected in such Schedule -------- 3.22, the continuation, validity and effectiveness of such Contracts, and ---- all other material terms thereof, will in no way be affected by the transactions contemplated by this Agreement. Except as set forth on Schedule 3.22, none of the Contracts listed in Schedule 3.22 requires the ------------- ------------- consent of any party to its assignment in connection with the transactions contemplated hereby.
(c) There exists no actual or threatened termination, cancellation or limitation of, or any modification or change in, (i) the business relationship of the Litho Companies with any customer or group of customers of either Litho Company whose purchases individually or in the aggregate are material to the operations and financial condition of either Litho Company, (ii) the business relationship of the Litho Companies with any material supplier to either Litho Company, or (iii) the relationship between either Litho Company and any of its employees not occurring in the ordinary course of business.
(d) The Litho Stockholders make no representation or warranty regarding the enforceability of any restrictive covenants in any employment contracts with the employees of either Litho Company.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 of Except as set forth on Schedule 4.12, neither the Company Disclosure Schedules sets forth a list nor any Subsidiary of the following Contracts to which the Company is a partyparty to:
(ia) any partnership, partnership agreement or joint ventureventure agreement which requires a payment, or similar Contract that involves the sharing delivery of profits assets or lossesservices, in excess of $250,000 per year;
(iib) any Contract with a Significant Customer agreement requiring the payment of severance or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, termination or consulting Contract similar pay with any current director, officer, employee or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)consultant;
(vc) any Contract agreement with another Person concerning confidentiality or non-competition materially limiting in any respect or restricting in any respect the ability of the Company or any Subsidiary of the Company to enter into or engage in any market or line of business business, including competing (geographically or otherwise including provisions on joint price-fixingotherwise) with any Person, granting any exclusive rights to make, sell or distribute products of the Company or any of its Subsidiaries, or granting any “most favored nation”, market or customer sharing, exclusivity or market classificationnations” rights;
(vid) any Contract agreement with any current or former officer, director, shareholder or Affiliate of the Company or any of its Subsidiaries;
(e) any agreements for the sale of any of the assets of the Company, Company or any of its Subsidiaries other than in the Ordinary Course ordinary course of Businessbusiness or for the grant to any Person of any preferential rights to purchase any of its assets entered into since January 1, 2008;
(viif) any Contract agreement relating to the acquisition by the Company or any of its Subsidiaries of any operating business or the assets or capital stock of any other PersonPerson entered into since January 1, other than in the Ordinary Course of Business2008;
(viiig) any agreement agreements relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the CompanyIndebtedness;
(ixh) any Contract agreements under which the Company or any of its Subsidiaries has made material advances or loans to any other Person (which shall not include advances made to an employee of the Company or any of its Subsidiaries in the Ordinary Course ordinary course of Businessbusiness);
(xi) any Contract relating to agreements for the settlementpurchase or sale of materials, conciliation supplies, goods, services, equipment or similar agreement with any Governmental Authority other assets, the performance of any claim which extend over a period of more than one year or action or pursuant to which are outside the Company will have any material outstanding obligation after the date ordinary course of this Agreementbusiness;
(xij) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, agreements for capital expenditures in excess of $50,000 on an annual basis 100,000;
(k) any agreements that license any Person to manufacture or reproduce any products, services or technology of the Company or any of its Subsidiaries or any material agreements to sell or distribute any products, services or technology of the Company or any of its Subsidiaries;
(l) any settlement agreements with respect to any pending or threatened Proceeding entered into since January 1, 2008, other than (i) releases immaterial in nature or amount entered into with former employees or independent contractors of the Company or any of its Subsidiaries in the ordinary course of business in connection with routine cessation of such employee’s or independent contractor’s employment with or retention by the Company or any of its Subsidiaries or (ii) settlement agreements for cash only (which have been paid), none of which required payment in excess of $100,000;
(m) any other agreement (or group of related agreements) the performance of which requires aggregate payments to or from the Company or any of its Subsidiaries in excess of $250,000 over per year, other than agreements entered into in the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;ordinary course of business; or
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvin) any other agreement (not described in clauses (ior group of related agreements) that is otherwise material to (xvii) above) the business, properties, assets or Liabilities of the Company or any of its Subsidiaries or under which the consequences of a default or termination of which would could reasonably be expected to have a Company Material Adverse Effect.
(b) . The Company has made available to Parent and Merger Sub accurate and complete copies of all the contracts set forth on Schedule 4.12. Each of the Contracts set forth or required to be contracts set forth on Section 3.12Schedule 4.12 is in full force and effect and is the legal, valid and binding obligation of the Company and/or its Subsidiaries, enforceable against them in accordance with its terms, except as such enforceability may be limited by General Enforceability Exceptions. With respect to each of the contracts set forth on Schedule 4.12, neither the Company nor any of its Subsidiaries is in material default of any such contract, nor, to the Company’s Knowledge, has any event occurred which, with notice or the lapse of time, or both, would give rise to a default by the Company or such Company Subsidiary, as applicable.
Appears in 1 contract
Sources: Merger Agreement (Helen of Troy LTD)
Contracts and Commitments. (a) Section 3.12 of Except as set forth on Schedule 3.08(a) (such contracts disclosed or required to be disclosed thereon, the Company Disclosure Schedules sets forth a list of the following Contracts to which the “Material Contracts”), no Acquired Company is a partyparty to or bound by any:
(i) any partnershipbonus, joint venturepension, profit sharing, retirement or similar Contract that involves the sharing other form of profits or lossesdeferred compensation plan, other than as described in Schedule 3.12(a);
(ii) contract for the employment of any Contract with officer, individual employee or other person on a Significant Customer full‑time or Significant Supplierconsulting basis other than offer letters for at-will employees without severance or notice periods of more than thirty (30) days and that are materially similar to an Acquired Company’s existing form, a copy of which has been made available to the Purchaser;
(iii) any Labor Agreementagreement, plan, or arrangement providing for severance, retention, change in control payments, or transaction-based bonuses or incentives;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with agreement involving any current director, or former officer, director or employee requiring an annual payment stockholder of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention any Acquired Company or change of control agreement, an aggregate payment in excess of $100,000)any Affiliate thereof;
(v) agreement or indenture under which any Contract with another Person concerning confidentiality Acquired Company has created, incurred, assumed or non-competition materially limiting guaranteed (or restricting the ability of the Company to enter into may create, incur, assume or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(viguarantee) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee including capitalized lease payments of the Companyobligations) or to mortgaging, pledging under which it has imposed (or otherwise placing may impose) a Lien (other than a Permitted Lien) on any portion of its assets, tangible or intangible;
(vi) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party;
(vii) lease or agreement under which it is lessor of or permits any third party to hold or operate any of its personal property;
(viii) contract or group of related contracts with the assets same party for the purchase by any Acquired Company of the Companyproducts or services which provides for annual payments in excess of $250,000 during any twelve (12)‑month period or in which any Acquired Company has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(ix) contract or group of related contracts for the sale by any Contract under Acquired Company of products or services that provides for revenues during any twelve (12)‑month period in excess of $500,000, or in which the an Acquired Company has made advances granted manufacturing rights, “most favored nation” pricing provisions or loans marketing or distribution rights relating to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business)services, products or territory;
(x) any Contract relating to agreement for the settlement, conciliation or similar agreement with any Governmental Authority disposition of any claim significant portion of the assets or action business of any Acquired Company (other than sales of product inventory in the ordinary course of business) or pursuant to which any agreement for the Company will have acquisition of the assets or business of any material outstanding obligation after other Person (other than purchases of supplies or components in the date ordinary course of this Agreementbusiness);
(xi) agreement concerning non-solicitation, noncompetition or that otherwise could reasonably be expected to have the effect of prohibiting or impairing any Contract with a Governmental Authority or pursuant to which Acquired Company from freely engaging in business anywhere in the Company participates in any program involving a Governmental Authorityworld;
(xii) agreement providing for any Contract pursuant to which the Company is granted a lease inroyalty, a sublease in, milestone or the right to use or occupy similar payments by any Leased Real Property facilityAcquired Company;
(xiii) any Contract that requires agreement concerning the establishment or operation of a consent to partnership, joint venture or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreementlimited liability company;
(xiv) settlement agreement or settlement-related agreement (including any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, agreement in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ noticeconnection with which any employment-related claim is settled);
(xv) Contracts under agreement which contains any provisions requiring any Acquired Company to indemnify any other party (excluding indemnities contained in agreements for the Company is a licensor purchase, sale or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis license of products or services entered into in the Ordinary Course ordinary course of Businessbusiness);
(xvi) any license, agreement or other agreement (not described instrument required to be listed in clauses (iSchedule 3.09(d) to or Schedule 3.09(e);
(xvii) aboveReal Property Lease;
(xviii) Government Contract;
(xix) agreement that would entitle any third party to receive a license or any other right to Intellectual Property of the Purchaser or any of its Affiliates (excluding the Acquired Companies) following the Closing, or that would otherwise bind or purport to bind the Purchaser or any of its Affiliates (excluding the Acquired Companies) following the Closing; or
(xx) agreement under which the consequences of a default or termination of which would reasonably be expected to have a Company Material Adverse Effect.
(b) Each With respect to each Material Contract: (i) such contract is a valid and binding agreement of the Contracts set forth applicable Acquired Company and, to the Acquired Companies’ knowledge, each of the other parties thereto, enforceable in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights generally and general principles of equity affecting the availability of specific performance and other equitable remedies; (ii) no Acquired Company is in breach or required default in any material respect, nor has any Acquired Company taken or failed to be set forth on Section 3.12take any action which, with notice or lapse of time, would constitute a breach or default in any material respect, or permit termination, material modification or acceleration, as applicable, under such contract; and (iii) to the Acquired Companies’ knowledge, no other party is in breach or default in any material respect under such contract. There are no audits being conducted by third parties relating an Acquired Company’s performance under any Material Contract. The Company has made available to Purchaser a complete and accurate copy of each Material Contract (as amended to date).
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth in Section 3.12 2.5(a) of the Company Disclosure Schedules sets forth a list of the following Contracts to which Schedule, the Company is not a party:
party to nor is it bound by: (i) any partnershipagreement, joint venture, contract or similar Contract that involves commitment requiring the sharing expenditure or series of profits or losses;
related expenditures of funds in excess of $10,000 (other than purchase orders in the ordinary course of business for materials necessary for the Company); (ii) any Contract with agreement, contract or commitment requiring the payment for goods or services whether or not such goods or services are actually provided or the provision of goods or services at a Significant Customer price less than cost to the Company of producing such goods or Significant Supplier;
providing such services; (iii) any Labor Agreement;
loan or advance to, or investment in, any Person or any agreement, contract, commitment or understanding relating to the making of any such loan, advance or investment; (iv) any employment, severance, incentive compensation, retention, change agreement or obligation with the Shareholders or any Affiliate (as defined in Section 10.1) of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
Company; (v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage Debt Obligations (as defined in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
Section 10.15); (vi) any Contract for labor union, management service, employment, consulting or other similar type contract or agreement; (vii) any agreement, contract or commitment that would limit the sale freedom of the Buyer or any Affiliate thereof following the Closing Date to engage in any line of business, to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any of the assets of the Company, other than Company or to compete with any Person or to engage in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of activity in any other Person, other than in the Ordinary Course of Business;
geographic area; (viii) any agreement, lease, contract or commitment or series of related agreements, leases, contracts or commitments not entered into in the ordinary course of business or, except for agreements to purchase or sell goods and services entered into in the ordinary course of business of the Company, not cancelable by the Company, without penalty to the Company, within 30 calendar days; (ix) any agreement or contract obligating the Company or that would obligate or require any subsequent owner of the Company to provide for indemnification or contribution with respect to any matter; (x) any sales, distributorship, agency or similar agreement relating to the incurrence, assumption, surety products sold or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of services provided by the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
; (xi) any Contract with a Governmental Authority license, royalty or pursuant to which the Company participates in any program involving a Governmental Authority;
similar agreement; or (xii) any Contract pursuant to which the Company is granted a lease inother agreement, a sublease in, contract or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract commitment that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would might reasonably be expected to have a be material to the Company Material Adverse Effector its business.
(b) Each The Company is not in breach of any provision of, or in default (and the Shareholders have no knowledge of any event or circumstance that with notice, or lapse of time or both, would constitute an event of default) under, the terms of any of the Contracts contracts or agreements listed in Section 2.5(a) of the Disclosure Schedule. All of the contracts and agreements listed in Section 2.5(a) of the Disclosure Schedule are in full force and effect. The Shareholders are not aware of any pending or threatened disputes with respect to any of the contracts or agreements listed on Section 2.5(a) of the Disclosure Schedule.
(c) The enforceability of the contracts and agreements set forth in Section 2.5(a) of the Disclosure Schedule will not be affected in any manner by the execution and delivery of this Agreement or required to be set forth on Section 3.12the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Stock Purchase Agreement (Weatherford International Inc /New/)
Contracts and Commitments. (a) Section 3.12 3.13 of the Company Disclosure Schedules Schedule sets forth a list list, as of the date hereof, of all of the following Contracts material agreements, contracts and commitments to which the Company is a party:party or by which the Company or its assets are bound (except for purchase orders for inventory by the Company in the ordinary course of business which shall not be required to be provided by Seller or disclosed in the Disclosure Schedule but shall be a Material Contract for all other purposes hereunder to the extent described below) (each such agreement, contract or commitment of a type described below, including, without limitation all such agreements, contracts or commitments entered into after the date hereof, a “Material Contract”):
(ia) any partnership, joint ventureemployment agreements, or similar Contract severance agreements or employee termination arrangements that involves are not terminable at will by the sharing of profits or lossesCompany without penalty;
(iib) any Contract change of control agreements with a Significant Customer or Significant Supplieremployees of the Company;
(iiic) agreements, contracts, commitments or arrangements containing any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially covenant limiting or restricting the ability of the Company or any of its Affiliates to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market to compete with any business or customer sharing, exclusivity or market classificationPerson;
(vid) agreements or contracts with the Company or any Contract for Affiliate of the sale Company or any officer, director or employee of the Company or any of such Affiliates or any members of their respective immediate families or any Affiliate of any of the assets of the Company, foregoing (other than in the Ordinary Course employment, severance and change of Businesscontrol agreements covered by clause (a) or (b) above);
(viie) any Contract relating to the acquisition by agreements or contracts under which the Company has borrowed or loaned money, or any note, bond, indenture, mortgage, installment obligation or other evidence of Indebtedness for borrowed or loaned money or any operating business or the assets or capital stock guarantee of any other Person, other than in the Ordinary Course of Businesssuch Indebtedness;
(viiif) any agreement relating to the incurrence, assumption, surety agreements or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing contracts imposing a Lien (other than a Permitted Lien) on any portion of the material assets of the Company;
(ixg) any Contract under joint venture agreements, partnership agreements or other agreements involving the sharing of profits;
(h) leases pursuant to which material personal or real property is leased to or from the Company has made advances and which provide for payments by or loans to any the Company of more than $50,000 per year;
(i) guaranties, suretyships or other Person (which shall not include advances made to an employee contingent agreements of the Company in the Ordinary Course involving underlying obligations of Business)not less than $50,000;
(xj) any Contract agreement, contract, commitment or arrangement relating to capital expenditures with respect to the Company and involving future payments which exceed $50,000 in any twelve (12)-month period;
(k) any requirements or take or pay contracts;
(l) any agreement, contract, commitment or arrangement relating to the settlement, conciliation acquisition or similar agreement with any Governmental Authority disposition of any claim material assets (other than in the ordinary course of business consistent with past practice) or action or any capital stock of any business enterprise; and
(m) contracts (other than those covered by clauses (a) through (j) above) pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority receive or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, pay in excess of $50,000 on an annual basis or in excess of $250,000 150,000 over the current life of the contract. Buyer has been given access to a true, correct, and complete copy of all Material Contracts, together with all supplements, amendments, waivers or other changes thereto. Each Material Contract term or (B) has is a term greater than one year valid and cannot be cancelled by binding agreement and is enforceable in accordance with its terms against the Company and, to the Knowledge of the Company, as applicableagainst the other parties thereto. With respect to all Material Contracts, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor not in material breach thereof or otherwise grants material default thereunder nor, to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) Company’s Knowledge, is any other agreement (not described party to any such Material Contract in clauses (i) to (xvii) above) material breach thereof or material default thereunder, nor does any condition exist under any Material Contract or any event which, with the termination giving of which notice or the lapse of time, would reasonably be expected to have constitute such a Company Material Adverse Effectmaterial breach or material default.
(b) Each of the Contracts set forth or required to be set forth on Section 3.12
Appears in 1 contract
Sources: Stock Purchase Agreement (Nbty Inc)
Contracts and Commitments. Except as set forth in Section 3.18 of the Seller Disclosure Letter, none of the Companies nor any of their Subsidiaries is a party to:
(a) Section 3.12 any partnership agreements or joint venture agreements which require a payment, or delivery of assets or services beyond the 2006-2007 ski season and which are not terminable by the applicable Company on 30 days or less notice without penalty to the applicable Company or any of its Subsidiaries, or which contain exclusivity arrangements which will be binding upon Affiliates of the applicable Company Disclosure Schedules sets forth (other than a list of Subsidiary thereof) following the following Contracts Closing;
(b) any agreement pursuant to which the applicable Company is a party:
(i) or its Subsidiaries would be required to pay severance to any partnership, joint venture, or similar Contract that involves the sharing of profits or losses;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, employee or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)consultant;
(vc) any Contract material agreement with another Person concerning confidentiality person or non-competition materially entity limiting or restricting the ability of the applicable Company or its Subsidiaries to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, restricting the ability of any Company or its Subsidiaries to enter into or engage in any market or customer sharingline of business or restricts or limits the ability of any Company or its Subsidiaries to own, exclusivity operate, sell, transfer, pledge, or market classificationotherwise dispose of or encumber any of its assets or properties;
(vid) any Contract material brokerage agreements;
(e) any agreements for the sale of any of the assets of the Company, applicable Company or its Subsidiaries other than in the Ordinary Course ordinary course of Businessbusiness or for the grant to any person or entity of any preferential rights to purchase any of its assets;
(viif) any Contract agreement relating to the acquisition by the applicable Company or its Subsidiaries of any operating business or the assets or capital stock of any other Personcorporation, other than in entity or business entered into during the Ordinary Course of Businesslast twelve (12) months;
(viiig) any agreement material agreements relating to the incurrence, assumption, surety or guarantee of any Indebtedness indebtedness other than ASC-Level Financings;
(excluding h) any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien material agreements (other than a Permitted Lienagreements granting rights to use readily available commercial Software and having an acquisition price of less than $50,000 in the aggregate for all such agreements and agreements allowing the use of Company trademarks, tradenames and the like in connection with promotional activities) on (i) granting or obtaining any portion right to use any Intellectual Property or (ii) restricting the rights of the assets applicable Company or any of its Subsidiaries, or permitting other Persons, to use or register any Intellectual Property of the applicable Company;
(ixi) any Contract material agreements under which the applicable Company or its Subsidiaries has made advances or loans to any other Person entity or individual (which shall not include advances made to an employee of the applicable Company in the Ordinary Course ordinary course of Businessbusiness consistent with past practice);
(xj) any Contract agreement for the supply of materials or services to a Company or its Subsidiaries (i) pursuant to which payments in excess of $50,000 in the aggregate were made by such Company or its Subsidiaries during the prior twelve (12) months, or (ii) that is otherwise necessary for the continued operation of the business which is conducted prior to the Closing Date, except, in either case, for purchases of retail inventory, insurance, or items subject to capital leases;
(k) any agreement for the lease of personal property to or from any Person providing for lease payments in excess of $50,000 per year;
(l) any agreement relating to capital expenditures providing for payments in excess of $50,000 not cancelable without penalty or further payment or without more than 30 days notice;
(m) any agreement relating to the settlement, conciliation grant or similar receipt of any license or royalty fees providing for payments in excess of $50,000 to or from any Person;
(n) any agreement with ASC or any Governmental Authority of its Affiliates that will not be terminated prior to the Closing;
(o) any sole source or exclusive supplier agreement; or
(p) except for agreements described in Section 3.18(a), any other agreement (or group of related agreements) the performance of which presently requires aggregate payments be made to or from any Company or any of its Subsidiaries in excess of $50,000 per year or requires performance by any Company and its Subsidiaries of any claim or action or pursuant to which the Company will have any material outstanding obligation after for a period of time extending more than one (1) year from the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effect.
(b) . Each of the Contracts set forth contracts to which any Company or any of its Subsidiaries is a party and which is required to be set forth on Section 3.123.18 of the Seller Disclosure Letter (the “Material Contracts”), a true and complete copy of each of which has been delivered or made available to the Buyer prior to the date hereof is in full force and effect and is the legal, valid and binding obligation of the applicable Company, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). With respect to each Material Contract, neither the applicable Company nor its Subsidiaries nor, to the Knowledge of the Companies, any other party, is in material breach of violation of, or default under, any such Material Contract, and no event has occurred, is pending or, to the Knowledge of the Companies, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a material breach or default by the applicable Company or its Subsidiaries or, to the Knowledge of the Companies, any other party under such Material Contract. With respect to each Material Contract, no Company or any of its Subsidiaries party thereto, and to the Knowledge of the Companies, no other party thereto, has repudiated any material provision of such contract.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 of Except as set forth on Schedule 4.09(a), neither the Company Disclosure Schedules sets forth a list of the following Contracts to which the Company nor any Relevant Entity is a partyparty to any:
(i) any partnership, joint venture, or similar Contract that involves the sharing of profits or losses;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for (A) the sale of any of the assets of the Companyany Relevant Entity (whether by merger, sale of Equity Securities, sale of assets or otherwise) other than the sale or disposition of obsolete equipment in the Ordinary Course ordinary course of Business;
business or (viiB) any Contract relating to the acquisition by the Company of all, substantially all, or any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any material portion of the assets or properties of the Company;
(ix) any Contract under which the Company has made advances or loans to any other another Person (which shall not include advances made to an employee whether by merger, purchase of the Company in the Ordinary Course Equity Securities, purchase of Businessassets or otherwise);
(xii) any Contract relating to the that is a settlement, conciliation or similar agreement with any Governmental Authority of any claim or action Body or pursuant to which the Company any Relevant Entity will have any material outstanding obligation after the date of this Agreement;
(iii) collective bargaining agreement or Contract with any labor union, labor organization, or works council (each, a “Labor Agreement”);
(iv) Contract for the employment or engagement of any officer, employee, independent contractor, or other person or entity on a part-time, full- time, consulting or other basis (including Licensed Personnel) providing for base compensation in excess of $125,000 per annum and all Contracts providing for severance or loans to officers, directors, employees or Affiliates, other than advances in the ordinary course of business;
(v) Contracts that contain any change in control provisions (A) that would require consent of a third party, (B) create a right of termination of a third party, or (C) which would otherwise result in any payments or benefits to any Person upon consummation of, or as a result of, the transactions contemplated hereby;
(vi) Contracts that contain obligations to pay or provide severance, retention and/or transaction bonus payments to any current or former employee, director, officer or independent contractor or any other Person;
(vii) Contract or indenture relating to Indebtedness of any Relevant Entity, including the borrowing of money or mortgaging, pledging or otherwise placing a Lien on any Relevant Entity’s assets or any guaranty of any obligation for borrowed money in excess of $100,000;
(viii) Contract for capital expenditures in excess of $100,000 in the aggregate that have yet to be performed, other than capital expenditures related either to new clinics in development in the ordinary course of business or to existing clinics in lease renewal in the ordinary course of business;
(ix) Contract that creates, governs or controls any joint venture, partnership or similar arrangement or the sharing of revenues, profits or losses;
(x) Lease or other Contract under which it is lessee of, or holds or operates any tangible personal property owned by any other party, for which the annual rental exceeds $150,000;
(xi) (A) Leases or (B) other Contracts under which it leases or subleases real property to or from any Contract with a Governmental Authority or pursuant to third party for which the Company participates in any program involving a Governmental Authorityannual rent payable by or to such Relevant Entity exceeds $150,000;
(xii) Contract between any Contract pursuant to which Relevant Entity, on the Company is granted a lease inone hand, a sublease inand any other Relevant Entity or equity holder, director, limited liability company manager, or officer of an Affiliate of any Relevant Entity or any of their Affiliates, or any of their “associates” or members of their “immediate family” (as defined in Rule 12b- 2 and 16a-1 of the right to use or occupy any Leased Real Property facilitySecurities Exchange Act of 1934), on the other;
(xiii) Contract or agreement relating to the development, ownership, use, registration, or enforcement of, or exercise of rights under, any Company Intellectual Property (except for non-exclusive, commercially available off-the- shelf Software costing of less than $50,000 annually that are subject to “shrink- wrap” or “click-wrap” license agreements);
(xiv) Contract under which the Company or any Relevant Entity has loaned to, or made an investment in, or guaranteed the obligations of, any Person;
(xv) Contract pursuant to which any Person provides management or administrative support services to the Company or any Relevant Entity or pursuant to which any Relevant Entity provides management or administrative support services to any other Person;
(xvi) settlement, corporate integrity agreement, non-prosecution agreement, conciliation or similar Contract, in each case, with any Governmental Body during the prior three (3) years or pursuant to which any Relevant Entity will have any outstanding monetary obligations or any non-monetary obligations after the date hereof;
(xvii) all Contracts with any Referral Source or Referral Recipient, excluding all employment agreements and offer letters with any Relevant Entity’s employees;
(xviii) all Contracts with any Governmental Body;
(xix) all Contracts for sales and marketing services and Contracts with Referral Recipients for which the annual fees or compensation payable thereunder by any Relevant Entity exceeds $125,000;
(xx) Organizational Documents in respect of the Equity Securities of any Person (other than the Company or any Relevant Entity);
(xxi) Contract that requires a consent to or otherwise contains a provision relating to a provides for any continuing “change of controlearn out,” “performance guarantee” or other similar contingent payments or payments of deferred purchase price of property or services that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay may be payable following the consummation date of the transaction contemplated by this Agreement;
(xivxxii) any other Contract that requires the indemnification of any Person (A) involves a future or potential Liability or receivable, as excluding indemnities contained in the case may be, in excess Organizational Documents of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis Relevant Entity, Leases, agreements for the purchase, sale or license of products or services entered into in the Ordinary Course ordinary course of Businessbusiness and agreements in connection with the Contracts set forth on Schedule 4.09(a)(i));
(xvixxiii) Contract that restricts the Company or any Relevant Entity from engaging in any line of business or geographic area or from competing with any Person;
(xxiv) Contract that contains any (A) exclusivity provision, stand-still provision, non-solicitation or non-hire provision; (B) ”most favored nation” provision; (C) right of first refusal, right of first offer, right of first negotiation or other agreement preferential right to purchase any material assets of the Company or any Relevant Entity; or
(not described xxv) without duplication of the foregoing, Contracts that resulted in clauses (i) payments during the fiscal year ended December 31, 2020, by or to (xvii) above) the termination Company or any Relevant Entity of which would reasonably be expected to have a Company Material Adverse Effectmore than $250,000 in the aggregate for any individual Contract.
(b) Each The Relevant Entities have made available to Buyer true and correct copies of all written Contracts, together with all amendments, waivers or other changes thereto, that are referred to on Schedule 4.09(a) (each, a “Material Contract” and, collectively, the “Material Contracts”).
(i) No Relevant Entity is in breach of, or in default under, any Material Contract, (ii) to the Knowledge of the Company, each other party to each of the Material Contracts set forth is not in breach of, or required in default thereunder, (iii) there has not occurred any event that with or without the lapse of time or the giving of notice or both would constitute a default under, result in the acceleration, cancellation or termination of or the right of any Person to declare a default or exercise any remedy under, or accelerate the maturity or performance of or payment under, or cancel, terminate, amend or modify, any Material Contract, and (iv) each Material Contract is valid, binding, enforceable and in full force and effect, except for such failures to be set forth on Section 3.12valid, binding or in full force and effect that would not reasonably be expected to be material to the Relevant Entities, taken as a whole.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (GPB Holdings II, LP)
Contracts and Commitments. (a) Section 3.12 of Except as set forth on the Contracts Schedule, neither the Company Disclosure Schedules sets forth a list of the following Contracts nor any Subsidiary is party to which the Company is a party:
or bound by any, whether written or oral: (i) collective bargaining agreement or contract with any partnership, joint venture, or similar Contract that involves the sharing of profits or losses;
labor union; (ii) any Contract with a Significant Customer bonus, pension, profit sharing, retirement, severance, post-retirement or Significant Supplier;
other form of deferred compensation plan, other than as described in Section 3.13 or the Schedules relating thereto; (iii) any Labor Agreement;
stock purchase, stock option, stock appreciation or similar plan; (iv) contract or other agreement for the employment of any employmentofficer, severanceindividual employee, incentive compensation, retention, change of control, director or other person on a full-time or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
basis; (v) any Contract with another Person concerning confidentiality agreement, instrument or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract indenture relating to the acquisition by the Company borrowing of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any material portion of the assets of the CompanyCompany and its Subsidiaries;
(vi) guaranty of any obligation for borrowed money or other guaranty (including so called take-or-pay or keep-well agreements); (vii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds $50,000; (viii) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, for which the annual rental exceeds $50,000; (ix) any Contract contract or group of related contracts with the same party for the purchase of products or services, under which the Company undelivered balance of such products and services has made advances or loans to any other Person (which shall not include advances made to an employee a selling price in excess of the Company in the Ordinary Course of Business);
$50,000; (x) any Contract relating to contract or group of related contracts with the settlement, conciliation same party for the sale of products or similar agreement with any Governmental Authority of any claim or action or pursuant to services under which the Company will have any material outstanding obligation after the date undelivered balance of this Agreement;
such products or services has a sales price in excess of $50,000; (xi) any Contract with a Governmental Authority contract which prohibits or pursuant to which materially restricts the Company participates or any of its Subsidiaries or any of their respective Affiliates from freely engaging in any program involving a Governmental Authority;
business anywhere in the world or from soliciting customers, suppliers, employees or consultants, (xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, fidelity or the right to use surety bond or occupy any Leased Real Property facility;
completion bond; (xiii) any Contract that requires a consent to letters of credit, drawn or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
undrawn; (xiv) any other Contract that (A) involves a future contract or potential Liability or receivable, as the case may be, agreement relating to capital expenditures and involving payments in excess of $50,000 on an annual basis 100,000; (xv) any contract or agreement relating to the disposition or acquisition of assets or any interest in any business enterprise, including any option thereon, outside the ordinary course of business consistent with past practice or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
250,000; (xvi) any other agreement (not described in clauses (i) to distribution, joint marketing or development agreement; (xvii) aboveany joint venture, partnership agreement, limited liability company agreement and any other similar contract (however named) involving a sharing of profits or losses, costs or liabilities by the termination Company or a Subsidiary with any other Person; (xviii) any contract or agreement providing for the payment by the Company or any of its Subsidiaries amounts owing as deferred purchase price for property or services, including all seller notes and "earn-out" payments, in each case other than trade payables incurred in the ordinary course of business; (xix) all agreements or contracts evidencing obligations of the Company or any of its Subsidiaries under leases which would reasonably be expected have been or should be, in accordance with GAAP, recorded as capital leases; (xx) commitments or obligations by which the Company or any of its Subsidiaries assures a creditor against loss pursuant to have a Company Material Adverse Effect.contingent reimbursement obligations with respect to letters of credit or similar financial instruments; (xxi) agreements or contracts providing any customer or supplier with "most favored" status as to pricing or other terms; or (xxii) agreements or contracts evidencing obligations under any interest rate, currency or other hedging agreement;
(b) Each The Purchaser either has been supplied with, or has been given access to on the online data site, a true, complete and correct copy of all contracts or agreements, or a summary of the material terms of any contracts or agreements that are not in writing, in each case which are referred to on the Contracts set forth Schedule, together with all material amendments, waivers or required to be set forth on Section 3.12other changes thereto (collectively, the "Material Contracts").
Appears in 1 contract
Contracts and Commitments. Schedule 2.19 contains a true, complete and correct list (and the Company has previously delivered to representatives of the FK Stockholders and the HT Equityholders true, complete and correct copies) of all of the following documents or agreements, or summaries of material oral agreements or understandings, relating to the business of the Company, the Company Subsidiary or the Company Assets to which, on the date of this Agreement, the Company or the Company Subsidiary is a party, or which relate to or affect the Company, the Company Subsidiary or the Company Assets or the transactions contemplated hereby and all documents or agreements which may require any action or consent in connection with such transactions, as they may have been amended to the date hereof:
(a) Section 3.12 any written employment or consulting agreement, contract or commitment with any employee, officer or director or any contract or agreement with other consultants;
(b) any agreement, contract or commitment with any party containing any covenant limiting the ability of the Company Disclosure Schedules sets forth a list or the Company Subsidiary or any employee of the following Contracts to which Company or the Company is a Subsidiary to engage in business or to compete in any location or with any person;
(c) any partnership or joint venture agreement with any party or any arrangements with any party with respect to the sharing of or in the profits or revenues of the Company or the Company Subsidiary, including without limitation any licensing or royalty agreements;
(d) any agreement or instrument relating to the borrowing of money, or the direct or indirect guarantee of any obligation for, or an agreement to service the repayment of, borrowed money or any other contingent obligations in respect of indebtedness of any other party:;
(e) any agreement, contract or commitment relating to the future disposition or acquisition of any investment in any party or of any interest in any business enterprise involving the business of the Company or the Company Subsidiary or the Company Assets;
(f) any contract or commitment for capital expenditures or the acquisition or construction of fixed assets;
(g) any contract or commitment for the sale or furnishing of materials, supplies, merchandise, equipment or services;
(h) any written agreement, instrument or other arrangement, or any unwritten agreement, contract, commitment or other arrangement, between or among the Company or the Company Subsidiary and any affiliates of the Company or the Company Subsidiary;
(i) any partnership, joint venture, or similar Contract that involves contract which grants to any person a preferential right to purchase any of the sharing of profits or lossesCompany Assets;
(iij) any Contract contract, agreement or commitment with a Significant Customer respect to the discharge or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case removal of a severance, incentive compensation, retention or change of control agreement, an aggregate payment Contaminant (as defined in excess of $100,000);
(vSection 2.23(b) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vibelow) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course ordinary course of Business;business; and
(viik) any Contract relating to the acquisition by the Company of any operating business other material agreement or the assets or capital stock of any other Person, other than instrument not made in the Ordinary Course ordinary course of Business;
(viii) any agreement relating to the incurrencebusiness. There is no course of dealing, assumptionwaiver, surety side agreement, arrangement or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans understanding applicable to any other Person (which shall not include advances made to an employee such contract of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis Subsidiary not disclosed therein or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse EffectSchedule 2.19.
(b) Each of the Contracts set forth or required to be set forth on Section 3.12
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (United Oilfield Services Inc)
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules sets Except as expressly contemplated by this Agreement or as set forth a list of the following Contracts to which on Schedule 4.15 attached hereto, the Company is not a partyparty to or bound by any written or oral:
(i) pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to its current or former directors, officers or employees or any partnershipother employee benefit plan, joint venturearrangement or practice, whether formal or similar Contract that involves the sharing of profits or lossesinformal;
(ii) collective bargaining agreement or any Contract other contract with a Significant Customer any labor union, or Significant Supplierseverance agreements, with employees at the executive management committee level since December 31, 2001, programs, policies or arrangements;
(iii) management agreement or contract for the employment of any Labor Agreementofficer, individual employee or other Person on a full-time, part-time, consulting or other basis (A) providing annual cash or other compensation in excess of $250,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby or (C) otherwise restricting its ability to terminate the employment of any employee at anytime for any lawful reason or for no reason without penalty or liability;
(iv) contract or agreement involving any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of Governmental Agency involving more than $100,000 (or, 200,000 other than in the case ordinary course of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)business;
(v) any Contract with another Person concerning confidentiality agreement or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract indenture relating to the acquisition by the Company of any operating business borrowed money or other Indebtedness or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien on any material asset or material group of assets of the Company or any letter of credit arrangements;
(vi) guarantee, other than a Permitted Lienendorsements made for collection in the ordinary course of business consistent with past custom and practice;
(vii) on lease or agreement under which the Company is (A) lessee of or holds or operates any portion personal property, owned by any other party, except for any lease of personal property under which the assets aggregate annual rental payments do not exceed $1,000,000 or (B) lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(ixviii) any Contract contract or group of related contracts with the same party or group of affiliated parties for the purchase or sale of raw materials, commodities, supplies, products, equipment or other personal property or services under which the Company undelivered balance since the Most Recent Audited Balance Sheet Date of such products and services has made advances a selling price in excess of $1,000,000;
(ix) other contract or loans to any other Person (which shall group of related contracts with the same party or group of affiliated parties continuing over a period of more than six months from the date or dates thereof, not include advances made to an employee of terminable by the Company in the Ordinary Course of Business)upon 30 days' or less notice without penalty or involving more than $1,000,000;
(x) any Contract contract relating to the settlementmarketing, conciliation advertising or similar agreement with any Governmental Authority promotion of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreementits products involving more than $1,000,000;
(xi) agreement under which it has granted any Contract with a Governmental Authority or pursuant to which the Company participates in Person any program involving a Governmental Authorityregistration rights (including, without limitation, demand and piggyback registration rights);
(xii) agreements relating to the ownership of, investments in or loans and advances to any Contract pursuant to which the Company is granted a lease inPerson, a sublease in, or the right to use or occupy any Leased Real Property facilityincluding investments in joint ventures and minority equity investments;
(xiii) any Contract that requires a consent to license, royalty, indemnification or otherwise contains a provision relating to a “change of control,” or that would give rise other agreement with respect to any acceleration or additional rights or obligations under such Contract or intangible property (including any Intellectual Property), including any agreements that prohibit or delay limit the consummation ability of the transaction contemplated by this AgreementCompany to use or disclose any Intellectual Property or to engage in any line of business, or to compete with any Person or to carry on its business or any other business anywhere in the world other than in the ordinary course of business;
(xiv) any broker, agent, sales representative, sales or distribution agreement other Contract that (A) involves a future or potential Liability or receivable, as than in the case may be, in excess ordinary course of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ noticebusiness;
(xv) Contracts under which the Company is a licensor power of attorney or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course similar agreement or grant of Business)agency;
(xvi) contract or agreement prohibiting it from freely engaging in any other agreement (not described business or competing anywhere in clauses (i) to the world, including any nondisclosure or confidentiality agreements; or
(xvii) above) other agreement which involves a consideration in excess of $1,000,000 annually, other than in the termination ordinary course of which would reasonably be expected to have a Company Material Adverse Effectbusiness.
(b) Each The Company has delivered or made available to Vista a correct and complete copy (as amended to date) of the Contracts set forth or required to be each contract, agreement, and instrument set forth on Section 3.12Schedule 4.15 (collectively, the "Material Contracts"). With respect to each Material Contract: (i) such Material Contract is legal, valid and binding, enforceable against the Company in accordance with the terms (except to the extent required by Creditors Rights Laws), and in full force and effect; (ii) such Material Contract will continue to be legal, valid and binding, enforceable against the Company in accordance with the terms (except to the extent required by Creditors Rights Laws), and in full force and effect on identical terms following the consummation of the transactions contemplated hereby; (iii) to the Company's knowledge no party to such Material Contract is in breach or default of the terms thereof, and to the Company's knowledge no event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under such Material Contract; and (iv) no party to such Material Contract has repudiated any provision thereof.
(c) Except as specifically set forth in Schedule 4.15(c), the Company is not a party to any contract, agreement, instrument or understanding that contains a "change in control," "potential change in control," or similar provision, in each case, that would be triggered by the transactions contemplated hereunder.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Aspect Communications Corp)
Contracts and Commitments. Except as set forth on Schedule 2.12(a)-(o) and Schedule 2.14(a)(ii) the Company is not a party to or otherwise obligated under any of the following, whether written or oral:
(a) Section 3.12 Any single contract or purchase order with vendors providing for an expenditure by the Company in excess of $25,000 or any contracts or purchase orders with the same or affiliated vendor(s) providing for an expenditure by the Company in excess of $25,000.
(b) Any contract providing for an expenditure by the Company for the purchase or lease of any real property in excess of $25,000.
(c) Any contract, bid or offer to sell products or to provide services to third parties which (i) the Company knows is at a price which would result in a net loss to the Company on the sale of such products or provision of such services or (ii) contains terms or conditions the Company cannot reasonably expect to satisfy or fulfill in whole or in part.
(d) 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 Disclosure Schedules sets forth or at a list price in excess of the following Contracts current reasonable market price at the time of such commitment.
(e) Any contract pursuant to which the Company is a party: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 $25,000).
(f) Any contract pursuant to which the Company is the lessor, sublessor or lessee of, or permits any third party to operate, any real or personal property owned or leased by an officer, employee or stockholder of the Company or any affiliate thereof.
(g) Any revocable or irrevocable power of attorney granted to any person, firm or corporation for any purpose whatsoever.
(h) Any loan agreement, indenture, promissory note, conditional sales agreement, mortgage, security agreement, letter of credit arrangement, guarantee, endorsement, assumption, indemnity, surety, foreign exchange contract, accommodation or other similar type of agreement.
(i) any partnership, joint venture, Any arrangement or similar Contract that other agreement which involves the (i) a sharing of profits or losses;
profits, (ii) any Contract with a Significant Customer future required payments of $25,000 or Significant Supplier;
more per annum to other persons, or (iii) any Labor Agreement;joint venture, partnership or similar contract or arrangement.
(ivj) any employmentAny sales agency, severancesales representation, incentive compensation, retention, change of control, distributorship or consulting Contract with any current director, officer, franchise agreement not terminable in 30 days or employee requiring an annual less without cost or penalty.
(k) Any contract providing for the payment of any cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in or other benefits upon the case of a severance, incentive compensation, retention sale or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage a substantial portion of its assets.
(l) Any contract prohibiting competition, prohibiting the Company or its employees from freely engaging in any market business anywhere in the world, or line prohibiting the disclosure of business trade secrets or otherwise including provisions on joint price-fixing, “most favored nation”, market other confidential or customer sharing, exclusivity or market classification;proprietary information.
(vim) any Contract for the sale of any of the assets of the Company, other than Any contract or commitment not made in the Ordinary Course of Business;.
(viin) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or Any contract pursuant to which the Company will have has acquired or disposed of or has agreed to acquire or dispose of any material outstanding obligation after the date of this Agreement;
(xi) securities or any Contract with a Governmental Authority business or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectproduct line.
(bo) Each Any other contract or commitment which is not cancelable without penalty on 30 days' notice or less and which is not specifically described on any other Schedule to this Agreement.
(p) Any agreement or arrangement relating to the employment, consulting, engagement or retainer of the Contracts set forth or required to be set forth on Section 3.12employees.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 3.12(a) of the Company Disclosure Schedules Schedule sets forth a complete and accurate list or description of each of the following Contracts to which are in effect on the Company is Effective Date (or any groups of related or similar Contracts, including any series of Contracts under a party:master agreement and including statements or work and purchase orders) (“Material Contracts”):
(i) any partnershipContracts that are not terminable by the Company on fewer than sixty (60) days notice without payment by or penalty, joint venture, liability or similar Contract that involves other adverse consequence to the sharing of profits or lossesCompany;
(ii) any Contract with Contracts that involve payments based on sharing profits or revenues of the Company or that create a Significant Customer partnership, joint venture or Significant Supplieran alliance, referral or reseller relationship;
(iii) any Labor AgreementContracts that are required to be set forth on Section 3.20(b) of the Company Disclosure Schedule;
(iv) any employment, severance, incentive compensation, retention, change Contracts that involve a specific commitment of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of Company resources having value exceeding $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)25,000 individually;
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of Contracts that pertain to projects commonly known as “fixed price/deliverable based projects” as to which the Company to enter into or engage has not completed performance in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classificationrespect;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating Contracts that relate to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating expenditures exceeding $25,000 individually to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has be made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xivii) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract Contracts that (A) involves impose a future or potential Liability or receivable, as Lien on any of the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or Company’s assets; (B) has a term greater than one year and cannot be cancelled by create, incur or guarantee any Indebtedness of the CompanyCompany to any other Person, as applicableor (C) assume, without penalty or further payment and without more than thirty (30) days’ noticeotherwise become liable for, the obligations of any other Person;
(xvviii) Contracts under which that relate to the Company is a licensor disposition or otherwise grants acquisition of material assets or any interest in any business enterprise (including any Liability related to a third party or arising out of any rights to use acquisition or other business combination such as any Intellectual Property (earn-out, performance, bonus or other than Intellectual Property licensed to customers on a non-exclusive basis contingent payment arrangement, however such arrangement may be evidenced) not in the Ordinary Course of Business)the Company;
(xviix) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effect.
(b) Each of the Outbound Intellectual Property Contracts set forth or that are required to be set forth on Section 3.123.13(e) of the Company Disclosure Schedule (except for Outbound Intellectual Property Contracts entered in the ordinary course of business);
(x) Contracts with Company Employees granting any bonus, severance benefits, change of control benefits, or termination pay (in cash or equity or otherwise) to any Employee with respect to which the Company has or may have any liability or obligation, in each case, except as required under applicable law, or Contracts with any labor union, works council or similar organization;
(xi) Contracts that are non-disclosure agreements, other than those entered into with any actual or prospective customer, reseller, distributor, partner, contractor, prospective employee or vendor in the Ordinary Course or those entered into with Company Employees or consultants in such capacity;
(xii) Contracts that (A) include any non-competition or non-solicitation covenant or similar arrangement that limits the right of the Company to engage in, or to compete (geographically or otherwise) in any line of business or with any other Person anywhere in the world or (B) grant exclusive rights of any type or scope;
(xiii) Contracts that provide for indemnification by or of the Company (excluding indemnification for third party infringement claims caused by a Company Product that is contained in the Company’s standard Contract with customers entered into in the Ordinary Course);
(xiv) Contracts that contain “most favored nation” provisions or any similar preferred pricing provision requiring that a third party be offered terms or concessions at least as favorable as those offered to one or more other parties;
(xv) Contracts with any Governmental Authority;
(xvi) Contracts that relate to the settlement of any Proceeding;
(xvii) Contracts with suppliers of the Company with a value exceeding $25,000 individually;
(xviii) Contracts establishing powers of attorney, other than routine powers of attorney relating to representation before governmental agencies;
(xix) collective bargaining agreements or other agreements or arrangements with any labor union, trade union or works council; or
(xx) Contracts that have a restriction on assignment on the Company in the event of a change of control.
(b) Prior to the date of this Agreement, the Company has delivered or made available to Purchaser a true, correct and complete copy of each Material Contract, including all amendments, modifications and supplements thereto through the date of this Agreement (or a written description of the material terms of any Material Contract that is not written).
(c) Each Material Contract is a valid, binding and enforceable obligation of the Company in accordance with its terms against the Company and, to the Knowledge of the Company, against each other party thereto (in each case, subject to General Enforceability Exceptions), and is in full force and effect.
(d) There is no existing default by the Company under any of the Material Contracts and no event has occurred or, to the Knowledge of the Company, that (whether with or without notice, lapse of time or the happening or occurrence of any other event) would reasonably constitute default by the Company or subject the Company to any penalty or liquidated damages, under any Material Contract.
(e) The Company has not received any notice or other written communication from any Person regarding (A) any actual or alleged breach of, default under or failure to comply with any term or requirement of any Material Contract; or (B) any actual or proposed revocation, withdrawal, suspension, cancellation, termination or amendment to any Material Contract.
(f) The Company has not received notice of and, to the Knowledge of the Company, there are no existing defaults by any other Person party to a Material Contract; and, to the Knowledge of the Company, no event has occurred or that with or without notice, lapse of time or the happening or occurrence of any other event, would reasonably constitute a default under any Material Contract by any other Person party thereto (other than the Company).
Appears in 1 contract
Contracts and Commitments. Except as set forth on Schedules 3.10(b) or 3.12, neither the Company nor any Subsidiary of the Company nor (as applicable) the Shareholder is a party to the following types of agreements (written or oral):
(a) Section 3.12 of the Company Disclosure Schedules sets forth any partnership agreement or joint venture agreement which requires a list of the following Contracts to which the Company is a party:
(i) any partnership, joint venturepayment, or similar Contract that involves the sharing delivery of profits assets or lossesservices, in excess of Fifty Thousand Dollars ($50,000) in any 12-month period;
(iib) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract agreement with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company or any Subsidiary of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixingagreements with exclusivity, “most favored nation”, market customer” pricing or customer sharing, exclusivity or market classificationother similar provisions;
(vic) any Contract agreements for the sale of any of the assets of the CompanyCompany or any of its Subsidiaries, other than in the Ordinary Course ordinary course of Businessbusiness, or for the grant to any person of any preferential rights to purchase any of its assets;
(viid) any Contract lease, sub-lease, license, sub-license or other agreement with respect to real property;
(e) any agreement of the Company or any of its Subsidiaries with the Shareholder or any other Affiliate of the Company;
(f) any agreement of the Company or any of its Subsidiaries or the Shareholder relating to the acquisition by acquisition, issuance, voting, registration, sale or transfer, preemptive rights, participation rights, rights of first refusal, repurchase or redemption rights of or with respect to any Securities of the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of BusinessCompany;
(viiig) any agreement with respect to the intellectual property of the Company and its Subsidiaries;
(h) any collective bargaining or union agreement to which the Company or any of its Subsidiaries is bound;
(i) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Companyindebtedness;
(ixj) any Contract under which agreement relating to interconnection, reciprocal compensation, co-location, cable TV programming and retransmission/must carry, conduits, pole attachments and rights of way with respect to the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);same; or
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvik) any other agreement (not described in clauses (i) to (xvii) aboveor group of related agreements) the termination performance of which will require aggregate payments, or delivery of assets or services, to or from the Company or any of its Subsidiaries in excess of Fifty Thousand Dollars ($50,000) in any 12-month period. Each of the contracts set forth on Schedule 3.12 (the “Material Contracts”) is in full force and effect and constitutes a legal, valid and binding obligation of the Company and/or its Subsidiaries or the Shareholder, as applicable, enforceable against them in accordance with its terms, except as such enforceability may be limited by the General Enforceability Exceptions. The Company, one of its Subsidiaries or the Shareholder, as applicable, has performed all of their material obligations (except those that have not yet become due) under, and is not in violation or breach of or default under, any of the Material Contracts, except for such non-performance, violation or breach which would not have or reasonably be expected to have a Company Material Adverse Effect.
(b) Each . The Company or the Shareholder has paid in full all amounts owed by the Company or the Shareholder, respectively, in connection with the Material Contracts, regardless of whether or not such amounts have been invoiced to the Company or the Shareholder, respectively. To the Company’s knowledge, each of the other parties to each of the Material Contracts set forth has performed all of their material obligations (except those that have not yet become due) under, and is not in violation or required to be breach of or default under, such Material Contracts. Except as set forth on Section Schedule 3.12, the execution of this Agreement and the consummation of the transactions contemplated hereby will not conflict with or cause a breach of any of the Material Contracts, and no notice to or approval or consent of any other party to any of the Material Contracts is required in order for those Material Contracts to continue in full force and effect without breach, default, acceleration or any change in terms after the Closing.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 of Except as set forth on Schedule 4.11(a), the Company Disclosure Schedules sets forth a list is not party or subject to or bound by any of the following Contracts (a Contract or other item responsive to which any of the Company is following categories (whether or not set forth on Schedule 4.11(a)), a party:“Material Contract”):
(i) any partnership, joint venture, Contracts with Material Customers or similar Contract that involves the sharing of profits or lossesMaterial Suppliers;
(ii) any Contract with a Significant Customer broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts which have required payments by the Company in excess of $20,000 in the prior twelve months or Significant Supplieron their terms require payments by Company of $20,000 or more annually;
(iii) any Labor Agreementoutstanding loan, advance or investment by the Company to any Person (excluding advances to employees for de minimis business expenses made in the ordinary course of business, consistent with past practice that are not material, individually or in the aggregate);
(iv) any employment, severance, incentive compensation, retention, change Contracts with independent contractors or consultants (or similar arrangements) which have payment obligations of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) the Company in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)20,000 annually;
(v) all Contracts granting any Contract with another Person concerning confidentiality an option or non-competition materially limiting a right of first refusal, first offer or restricting the ability similar preferential right to purchase any of the Company to enter into Equity Interests, assets or engage in any market or line services of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classificationthe Company;
(vi) any Contract for granting any Person “most favored nation”, “most favored customers”, or similar price or term protections or other rights obligating the sale Company to change the conditions of any such Contract based on better terms of the assets of the Company, conditions provided to other than in the Ordinary Course of BusinessPersons;
(vii) any Contract relating to the acquisition by the Company of Contracts with any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of BusinessGovernmental Entity;
(viii) any agreement relating Contracts that limit or purport to limit the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments ability of the CompanyCompany or any of its managers, officers or employees to (A) or to mortgagingown, pledging operate, sell, transfer, pledge or otherwise placing a Lien dispose of or encumber any of its assets or services or (other than a Permitted LienB) on compete or engage in any portion line of the assets business or compete or engage in any business with any Person or in any geographic area or during any period of the Companytime;
(ix) any Contract under which the Company has made advances joint venture, partnership or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business)similar Contracts;
(x) any Contract relating Contracts for the sale, assignment, lease, license or other disposition of Company’s assets, except for (a) non-exclusive licenses granted to end-user customers for the settlementsale, conciliation lease or similar agreement purchase of Company Software in the ordinary course of business consistent with any Governmental Authority of any claim or action or pursuant past practice, and (b) Contracts granting non-exclusive licenses to which business software and off-the-shelf software, in each case, that is commercially available on standard terms from third-party vendors and require payments by the Company will have any material outstanding obligation after less than $20,000 in the date prior twelve months or on their terms require payments by Company of this Agreement$20,000 or less annually;
(xi) any Contract with a Governmental Authority Contracts entered into relating to (a) the acquisition or pursuant to which disposition of any business (whether by merger, sale of Equity Interests, sale or assets or otherwise) or material portion of any assets or property (real or personal, tangible or intangible), or (b) the Company participates in sale, transfer, issuance, redemption or disposition of any program involving a Governmental AuthorityEquity Interests of any other Person;
(xii) any Contract pursuant powers of attorney with respect to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facilityBusiness;
(xiii) any written Contract with any employee entitled to receive compensation in excess of $50,000 annually that requires a consent to is not terminable at-will and all collective bargaining agreements or otherwise contains a provision relating to a other Contracts with any labor organization, union or association;
(xiv) any Contracts providing for any severance, “change of control,stay pay” or termination fee or payment with any manager, officer or employee or consultant of the Company or any fee, penalty, or payment related to an individual providing services to the Company that would give rise to any acceleration will be triggered in whole or additional rights in part, with or obligations under such Contract or prohibit or delay the without a subsequent event, by consummation of the transaction transactions contemplated by this Agreement;
(xivxv) any Contracts concerning confidentiality, including business associate agreements, other than any Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by with the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to ’s customers on a non-exclusive basis entered into in the Ordinary Course ordinary course of Business)business or with prospective purchasers of the Company;
(xvi) any other lease or similar agreement (not described in clauses (i) to under which the Company is the lessor of, or makes available for use by any third Person, any tangible personal property owned by the Company;
(xvii) aboveany Contracts providing licenses by or to the Company of any Proprietary Rights of any third party, including any settlement, development, hosting or other similar services Contracts, other than (a) non-exclusive licenses granted to end-user customers for the termination sale, lease or purchase of which would reasonably be expected Company Software in the ordinary course of business consistent with past practice, and (b) non-exclusive licenses to have a business software and off-the-shelf software, in each case, that is commercially available on standard terms from third-party vendors and require payments by the Company Material Adverse Effectless than $20,000 in the prior twelve months or on their terms require payments by Company of $20,000 or less annually;
(xviii) any Contracts with any Insider, other than any Transaction Documents;
(xix) any Contract with any professional employer organization, staffing agency, temporary employee agency or similar company or service provider;
(xx) any Contracts involving the settlement or release of claims with any current employee, or with any former employee within the past five (5) years; and
(xxi) any Contracts not otherwise included in the categories above involving aggregate consideration in excess of $20,000 annually.
(b) Each The Company has provided complete copies of each written Material Contract, and an accurate summary of the Contracts material terms of any oral Material Contract, including any amendments, supplements, schedules, addenda or similar modifications thereto. Except as set forth or on Schedule 4.11(b), with respect to each of the Material Contracts: (i) the Company has performed, in all material respects, all of the obligations required to be performed by it; (ii) the Company has not violated or breached, or declared or committed any default under, any such Contract and, to the Company’s Knowledge, no other Person has violated, breached, or declared or committed any default under, any such Contract. Except as set forth on Section 3.12Schedule 4.11(b), the Company has not received any written, or to the Company’s Knowledge oral, notice regarding any actual or alleged violation or breach of or material default under, or intention to terminate, cancel, materially modify, not renew or let lapse upon the expiration of its term, any Material Contract.
Appears in 1 contract
Sources: Unit Purchase Agreement (Streamline Health Solutions Inc.)
Contracts and Commitments. (a) Section 3.12 3.22.1. Except as set forth on Schedule 3.22.1 hereto and as contemplated by the Transaction Documents, the Company is not a party to, otherwise subject to, bound by, obligated or liable under or entitled to any rights or benefits under, and none of the properties or businesses of the Company Disclosure Schedules sets forth a list are subject to, any of the following Contracts to which the Company is a partyfollowing:
(i) written Contract with any partnershippresent or former officer, joint ventureemployee or consultant or for the employment of any Person, including any consultant or similar Contract that involves any oral contract with any such Person which is not terminable at will by the sharing Company without any payment of profits or lossesany kind;
(ii) Contract for the future purchase of, or payment for, supplies, products or services having a total value or involving total payments or costs of $100,000 or more in any Contract one case or in the aggregate for all Contracts which are related or which are with a Significant Customer the same Person or Significant Suppliergroup of affiliated Persons;
(iii) Contract continuing over a period of more than six months from the date hereof having a total value or involving total payments or costs of $100,000 or more in any Labor Agreementone case or in the aggregate for all Contracts which are related or which are with the same Person or a group of affiliated Persons;
(iv) any employmentdistribution, severancedealer, incentive compensationrepresentative or agency Contract which, retentionindividually or together with one or more such Contracts which are related or are with the same Person or group of affiliated Persons, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation is material (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in except for the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000Licenses);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of lease under which the Company to enter into is either lessor or engage lessee of any real property or any material personal property having annual lease payments in any market or line excess of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification$100,000;
(vi) note, debenture, bond or other security or evidence of indebtedness, equipment trust agreement, letter of credit agreement, loan agreement, pledge or security agreement, mortgage or other Contract pursuant to which any Contract for material contingent obligation or any other Debt of the sale Company to any other Person or of any of other Person to the assets of the Company, other than Company was incurred or may be incurred in the Ordinary Course of Businessfuture or otherwise relating to any such contingent obligation or other Debt;
(vii) Contract for any capital expenditure or leasehold improvement in excess of $100,000 per year in any single case or $100,000 per year in the aggregate for all cases;
(viii) Contract relating limiting or restraining the Company from engaging in any business or competing in any manner generally or in any specific geographic area or obligating the Company to the acquisition present any business or other opportunity to any other Person or grant or offer to grant any other Person any participation or other interest in any business or other opportunity;
(ix) Contract pursuant to which any Person has a right of first refusal, a "tag-along" right or any similar right with respect to any proposed disposition by the Company of any operating business equity interest in the Company or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets property of the Company;
(ixx) any Contract under which the Company has made advances relates in whole or loans in part to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation License or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this AgreementIntangible Property;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authoritylabor union;
(xii) any bonus, pension, profit-sharing, retirement, stock purchase, stock option, deferred compensation, stock bonus, stock or equity appreciation plan, phantom stock or equity interest plan, death benefit, disability, insurance, medical reimbursement, fringe benefit plan, or similar plan, program or Contract pursuant in effect with respect to which its employees or the employees of others, except for the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facilityPlans;
(xiii) any Contract that requires a consent to which provides for "golden parachute" or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreementsimilar benefits;
(xiv) Contract relating to the mortgaging, pledging or other placing of a lien on any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess properties of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which Contract with or for the Company is a licensor benefit of any present or otherwise grants to a third party any rights to use any Intellectual Property former stockholder (other than Intellectual Property licensed to customers the Investors or their respective Affiliates), partner, director or officer of the Company or any Affiliate of any such Person, except for the Company Plans, and except for Contracts exclusively between and for the benefit Company and disclosed on a non-exclusive basis in the Ordinary Course of Business)any Schedule;
(xvi) any other agreement (Material Contract not described made in clauses (i) to (xvii) above) the termination ordinary course of which would reasonably be expected to have a Company Material Adverse Effectbusiness.
(b) Each 3.22.2. Schedule 3.22.2. to the Prior Purchase Agreement lists all material Licenses material to the operation to the Company's business and identifies the grantor of the Contracts set forth or required to be each thereof.
3.22.3. Except as set forth on Section 3.12Schedule 3.22.3 to the Prior Purchase Agreement, each of the Licenses, Contracts, plans and other items identified on Schedule 3.22.1 hereto or Schedule 3.22.2 to the Prior Purchase Agreement is in full force and effect, valid and enforceable in accordance with its terms; the Company is, and to the Company's knowledge all other parties thereto are, in compliance with the material provisions thereof; the Company is not, and to the Company's knowledge no other party thereto is, in default in the performance, observance or fulfillment of any agreement, covenant, obligation, commitment or condition contained therein; and to the knowledge of the Company no event has occurred which, with or without the giving of notice or lapse of time or both, would constitute a default or event of default thereunder, except for defaults or events of default which are not, individually or in the aggregate, material. Furthermore, no such License, Contract, plan or other item contains, in the reasonable opinion of the Company, any material requirement, commitment, condition or other provision with which there is a reasonable likelihood the Company or, to the knowledge of the Company, any other party thereto will be unable to comply or with which there is a reasonable likelihood the Company or to the knowledge of the Company, any other party thereto will be able to comply only at an economic loss.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules sets forth Schedule 4.13 contains a list of the following Contracts agreements, whether oral or written, to which the Company is a party:
(i1) collective bargaining agreement or contract with any partnership, joint venture, or similar Contract that involves the sharing of profits or losseslabor union;
(ii2) grower contracts, including any Contract with a Significant Customer or Significant Supplierforward contracts;
(iii3) any Labor Agreementbonus, pension, profit sharing, retirement or other form of deferred compensation plan;
(iv4) any employmenthospitalization insurance or other welfare benefit plan or practice, severance, incentive compensation, retention, change of control, whether formal or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)informal;
(v5) contract for the employment of any Contract with another officer, individual employee or other Person concerning confidentiality on a full-time or non-competition materially limiting consulting basis or restricting the ability of the Company relating to enter into or engage in severance pay for any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classificationsuch Person;
(vi6) any Contract for the sale of any of the assets of the Companyindependent contractor, other than in the Ordinary Course of Businesspartnership or joint venture agreements;
(vii7) any Contract confidentiality agreement;
(8) agreement or indenture relating to the acquisition by the Company borrowing of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Companyits assets;
(ix9) guaranty of any Contract obligation for borrowed money or otherwise;
(10) lease or agreement under which it is lessee of, or holds or operates any property, real or personal, owned by any other party, for which the annual rental exceeds $10,000;
(11) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $10,000;
(12) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $100,000;
(13) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $100,000;
(14) contract which prohibits the Company has made advances or loans to from freely engaging in business anywhere in the world;
(15) contract for the distribution of any other Person (which shall not include advances made to an employee of the Company in products of the Ordinary Course of BusinessBusiness (including any distributor, sales and original equipment manufacturer contract);
(x16) franchise agreement;
(17) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with any Intellectual Property;
(18) contract or commitment for capital expenditures in excess of $100,000;
(19) agreement for the sale of any capital asset;
(20) any Contract relating to the agreement with any of Sellers, Insiders or Affiliates;
(21) any agreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(22) any settlement, conciliation or similar agreement with any Governmental Authority or which will require satisfaction of any claim or action or pursuant to which the Company will have any material outstanding obligation obligations after the execution date of this Agreement;
(xi23) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts agreement under which the Company is a licensor has advanced or loaned any Person amounts in the aggregate exceeding $100,000 or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis not in the Ordinary Course of Business);
(xvi24) any other agreement (not described in clauses (i) to (xvii) aboveor group of related agreements) the termination performance of which involves consideration in excess of $100,000; or
(25) other agreement which is either material to the Business, was not entered into in the Ordinary Course of Business, or if terminated would reasonably be expected to have a Company Material Adverse Effect.
(b) Each With respect to each agreement referred to in such Schedule 4.13: (A) the agreement is legal, valid, binding, enforceable, and in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable, and in full force and effect on identical terms following the consummation of the Contracts set forth transactions contemplated hereby; (C) the Company is not, and to the Sellers’ Knowledge no other party, is in breach or default, and no event has occurred that with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (D) the Company is not, and to the Sellers’ Knowledge no other party has repudiated any provision of the agreement.
(c) The Company has in all material respects performed all obligations required to be set forth on Section 3.12performed by the Company in connection with the contracts or commitments required to be disclosed in Schedule 4.13 and is not in receipt of any claim of default under any contract or commitment required to be disclosed under Schedule 4.13. The Company has no present expectation or intention of not fully performing any material obligation pursuant to any contract or commitment required to be disclosed under such caption.
(d) Prior to the date of this Agreement and the Closing Date, Sellers have delivered to Buyer a true and correct copy of each written contract or commitment, and a written description of each oral contract or commitment, referred to in Schedule 4.13, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a1) Section 3.12 The Disclosure Schedule lists the agreements of the Company Disclosure Schedules sets forth a list of the following Contracts types listed below, whether oral or written, to which the Company or the Company Subsidiary is a party, which are currently in effect, and which relate to the operation of the Business or the Assets:
(iA) collective bargaining agreement or Contract with any partnership, joint venture, or similar Contract that involves the sharing of profits or losseslabor union;
(iiB) any Contract of any kind with any employee, officer or director of the Company (including respecting salary, stock options, bonuses, salary increases and the like) or any of the respective Affiliates of such individuals;
(C) confidentiality agreement;
(D) any Contract which involves (i) the payment or receipt of cash or other property which exceeds $25,000, (b) an unperformed commitment required to be performed by the Company or the Company Subsidiary over a period in excess of sixty (60) days, or (c) goods or services having a value in excess of $25,000; or (d) any Contract with any Governmental Authority or with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of party acting as a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement prime contractor with any Governmental Authority in respect of any claim or action or pursuant to which the Contract with the Company will have any material outstanding obligation after or the date of this AgreementCompany Subsidiary;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xiiE) any Contract pursuant to which the Company is granted a lease in, a sublease inor the Company Subsidiary has made or will make loans or advances, or has or will have incurred debts or has become or will become a guarantor or surety or pledged its credit or otherwise become responsible with respect to any undertaking of another (except for the right to use or occupy any Leased Real Property facilitynegotiation and collection of negotiable instruments in the ordinary course of the Business);
(xiiiF) any indenture, credit agreement, loan agreement, note, mortgage, security agreement, lease of real or personal property, loan commitment or other Contract relating to the borrowing of funds, the extension of credit or financing;
(G) any lease or agreement under which the Company or the Company Subsidiary is lessor or lessee of, or holds or operates any personal property owned by any other party;
(H) any lease or agreement under which the Company or the Company Subsidiary is lessor or lessee of, or permits any third party to hold or operate, any property, real or personal;
(I) any Contract or group of related Contracts with the same party for the purchase of products or services to be used in the Business
(J) any Contract or group of related Contracts with the same party for the sale of products or services;
(K) any Contract that requires a consent to limits or otherwise contains a provision relating to a “change of control,” restricts the Company or that would give rise to the Company Subsidiary or any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this AgreementPrincipals from freely engaging in the Business anywhere in the world or which otherwise limits the scope of the Company's or the Company Subsidiary's conduct of the Business;
(xivL) any license agreement or other Contract that providing for the payment or receipt of royalties or other compensation by the Company or the Company Subsidiary in connection with the IP Rights described in the Disclosure Schedule;
(AM) involves a future any Contract, whether or potential Liability not fully performed, relating to any acquisition or receivabledisposition of the Company or the Company Subsidiary or any predecessor in interest to the Company or the Company Subsidiary, or any acquisition or disposition of any subsidiary, division, line of business or real property; and
(N) other agreements relating to the Business or which are material to the Business or were not entered into in the ordinary course of the Business.
(2) The Company and the Company Subsidiary have performed all material obligations required to be performed by them in connection with the Contracts, neither the Company nor the Company Subsidiary is in receipt of any claim of default under any Contract, neither the Company nor the Company Subsidiary has any present expectation or intention of not fully performing any obligation pursuant to any Contract, and the Company has no knowledge of any breach or anticipated breach by any other party to any Contract. Each Contract is valid, binding and enforceable against the Company or the Company Subsidiary, as the case may be, in excess and, to the knowledge of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company and the Principals, is a licensor valid, binding and enforceable against he other party thereto in accordance with its terms, except that such enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or otherwise grants other similar laws, now or hereafter in effect, affecting creditors' rights generally, and the remedy of specific performance and injunctive and other forms of equitable relief may be subject to a third party any rights equitable defenses and to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effect.
(b) Each discretion of the Contracts set forth or required to court before which any proceeding therefor may be set forth on Section 3.12brought.
Appears in 1 contract
Sources: Merger Agreement (NCT Group Inc)
Contracts and Commitments. (a) Section 3.12 Schedule 4.15 of the Company Disclosure Schedules sets forth a list Schedule lists all of the following Contracts types of agreements to which the either Company is a party:party (collectively, “Material Contracts”):
(i) any partnership, joint venture, agreement (or similar Contract that involves group of related agreements) for the sharing lease of profits personal property from or lossesto third parties;
(ii) any Contract with agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a Significant Customer period of more than one year, (B) which involves anticipated payments or Significant Supplierreceipts of more than $50,000, or (C) in which either Company has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any services, products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(iii) any Labor Agreementagreement concerning the establishment or operation of a partnership, joint venture or limited liability company;
(iv) any employmentagreement (or group of related agreements) under which either Company has created, severanceincurred, incentive compensationassumed or guaranteed (or may create, retentionincur, change assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a Lien on any of controlits assets, tangible or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)intangible;
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting agreement for the ability disposition of any significant portion of the assets or business of either Company to enter into (other than sales of products in the ordinary course of business) or engage any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in any market or line the ordinary course of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classificationbusiness);
(vi) any Contract for the sale of any of the assets of the Companyagreement concerning confidentiality, noncompetition or non-solicitation (other than confidentiality agreements with suppliers or customers or employees of either Company set forth in the Ordinary Course such Company’s standard terms and conditions of Businesspurchase or sale or standard form of employment letter or employment agreement, copies of which have previously been delivered to Buyer);
(vii) any Contract relating to employment agreement, consulting agreement, severance agreement (or agreement that includes provisions for the acquisition by the Company payment of severance) or personnel retention agreement, or any operating business or the assets or capital stock contractual guaranty of any other Person, other than in the Ordinary Course of Businessemployment;
(viii) any material settlement agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness settlement-related agreement (excluding including any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on in connection with which any portion of the assets of the Companyemployment-related claim is settled);
(ix) any Contract under agency, distributor, sales representative, franchise or similar agreement to which the either Company has made advances is a party or loans to any other Person (by which shall not include advances made to an employee of the either Company in the Ordinary Course of Business)is bound;
(x) any Contract relating agreement which contains any provisions requiring either Company to indemnify any other party in an amount which would reasonably be expected to exceed $250,000 (excluding indemnities contained in the settlementCompanies’ standard form agreements, conciliation copies of which have been provided to Buyer, for the sale or similar agreement with any Governmental Authority license of any claim products or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreementservices);
(xi) any Contract with a Governmental Authority agreement that would reasonably be expected to have the effect of prohibiting or pursuant to which impairing the conduct of the business of either Company participates in any program involving a Governmental Authorityas currently conducted;
(xii) any Contract pursuant agreement that purports to which create any obligation of any Affiliate of any Company that would reasonably be expected, subsequent to the Company is granted a lease inClosing, a sublease in, to have the effect of prohibiting or impairing in any material respect the right to use conduct of the business of Buyer or occupy any Leased Real Property facility;of its Affiliates as currently conducted; and
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to agreement with any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, insurance provider which is not listed in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse EffectSchedule 4.13.
(b) Each Seller has delivered to Buyer a complete and accurate copy of each Material Contract (as amended to date). Except as set forth in Schedule 4.15: (i) all Material Contracts are legal, valid, binding and enforceable and in full force and effect against the Company that is the party thereto and, to Seller’s knowledge, against each other party thereto; (ii) neither of the Companies is in material breach or default or is now subject to any condition or event which has occurred and which, after notice or lapse of time or both, would constitute a material default by such Company under any such Material Contract and, to Seller’s knowledge, no other party to any such Material Contract is in material breach or default or is now subject to any condition or event which has occurred and which, after notice or lapse of time or both, would constitute a material default by such party under any such Material Contract; and (iii) to Seller’s knowledge, none of the Material Contracts set forth will be voided, revoked or required terminated, or voidable, revocable or terminable, upon and by reason of the consummation of the transactions contemplated by this Agreement.
(c) Except for powers of attorney granted in the ordinary course of business, there is no outstanding power of attorney granted by either Company to be set forth on Section 3.12any Person.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 Except as set forth on the attached Schedule 3.09, as of the date of this Agreement, neither Sellers nor any of their Subsidiaries (in each case, solely to the extent related to the Business, the Seller Contributed Assets or the Company Disclosure Schedules sets forth a list of the following Contracts to which Assumed Liabilities) or the Company is a partyparty to or bound by any:
(i) Contract for the lease of personal or real property to or from any partnership, joint venture, or similar Contract that involves the sharing Person providing for lease payments in excess of profits or losses$50,000 per annum;
(ii) Contract pursuant to which it (A) has acquired any Contract with a Significant Customer license, covenant not to ▇▇▇, or Significant Supplierright to use any Intellectual Property material to the operation of the Business (excluding any license the benefit of which is being provided under the Transition Services Agreement and agreements for off-the-shelf or commercially available Software, technology or content subject to one-time or annual payments of less than $50,000 unless such Software, technology or content is incorporated into the Company Proprietary Software), or (B) has granted to any third party any license, covenant not to ▇▇▇, or right to use any Company IP, other than non-exclusive licenses granted to customers and vendors in the Ordinary Course;
(iii) Contract with any Labor AgreementMaterial Client that was issued an invoice from September 1, 2016 to the date hereof or any Contract with a Material Supplier;
(iv) any employmentpartnership, severancestrategic alliance, incentive compensationjoint venture or other similar agreement that concerns collaboration, retention, change partnership or the sharing of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation profits (excluding non-guaranteed sales commissions) in excess for the avoidance of $100,000 (ordoubt, in the case of a severance, incentive compensation, retention or change of control any customer agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company it has made advances created, incurred, assumed or loans to guaranteed any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease inindebtedness for borrowed money, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may becapitalized lease obligation, in excess of $50,000 or under which it has imposed a Lien on an annual basis any of its assets, tangible or intangible, other than Permitted Liens;
(vi) Contract that contains any provision or covenant limiting (A) its ability to engage in any line of business, to compete with any Person or to do business with any Person in any location (including any Contract that contains any covenant not to compete or other similar provision), (B) its ability to employ any Person, other than any such restrictions contained in non-disclosure agreements or agreements with customers or vendors entered into in the Ordinary Course or (C) the ability of any Person to compete with or obtain products or services from it;
(vii) collective bargaining agreement (or similar labor Contract);
(viii) Contract for the employment of any Business Employee or that provides severance benefits;
(ix) Contracts relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) as to which Sellers or any of their Subsidiaries or Affiliates or the Company has continuing material obligations or material rights;
(x) Contract relating to capital expenditures (including capitalized software costs) in excess of $250,000 over 50,000 in the current Contract term or (B) has any future fiscal year, or relating to the acquisition or construction of fixed assets in the current or any future fiscal year with a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ noticevalue in excess of $50,000;
(xvxi) Contracts under which the Company is a licensor Contract granting any exclusive right or otherwise grants to a third party rights of first refusal, negotiation or similar rights in any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business)its properties or assets;
(xvixii) Contracts with any Governmental Body; or
(xiii) agreement containing commitments, obligations or other agreement (not Contract to enter into any Contract of the types described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectthis Section 3.09.
(b) Each of the Contracts Except as set forth on Schedule 3.09(b), Buyer has been given access to a true and correct copy of all written Contracts (and has been provided with a written description of all oral Contracts) which are referred to on Schedule 3.09, together with all written modifications and amendments thereto. Except as set forth on Schedule 3.09(b), neither Sellers nor any of their Subsidiaries nor the Company has received any written (or, to the Seller’s knowledge, oral), notice of cancellation, termination or material adverse modification in connection with any Material Contract.
(c) Neither Sellers nor any of their Subsidiaries nor the Company is in material breach or default under any Contract listed on Schedule 3.09 or required to be set forth listed on Section 3.12Schedule 3.09 (each, a “Material Contract” and, collectively, the “Material Contracts”) and to Sellers’ knowledge, the other parties to each of the Material Contracts are not in material default thereunder and neither Sellers nor any of their Subsidiaries nor the Company has received any written notice that any of the foregoing Persons has materially breached, violated or defaulted under any of the Material Contracts. Each Material Contract is the legal, valid and binding obligation of Sellers or their Subsidiaries, as applicable, and to Sellers’ knowledge, the other parties thereto, is in full force and effect and enforceable (except to the extent enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or moratorium Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies) against Sellers or their Subsidiaries, as applicable, and to Sellers’ knowledge, the other parties thereto, in accordance with its terms.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Contracts and Commitments. Except as set forth on SCHEDULE 4.14, the Company is not a party to any written or oral:
(a) Section 3.12 contract for the employment of the Company Disclosure Schedules sets forth a list of the following Contracts to which the Company is a party:
(i) any partnershipofficer, joint ventureindividual employee, or similar Contract that involves the sharing of profits other Person on a full-time, part-time, consulting or lossesother basis;
(iib) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract contract relating to the acquisition by the Company of any operating business Funded Indebtedness or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion Asset or group of the assets Assets of the Company;
(ixc) contract involving the sale of the accounts receivable of the Company to any Contract other Person at a discount;
(d) guarantee of any obligation for borrowed money or otherwise;
(e) contract with respect to the lending or investing of funds;
(f) contract under which the Company has made advances is the lessee of or loans the holder or operator of any real or personal property owned by any other Person;
(g) contract under which the Company is the lessor of or permits any third Person to hold or operate any real or personal property owned or controlled by the Company;
(h) assignment, license, indemnification or agreement with respect to any other form of intangible property, including, without limitation, any Intellectual Property or confidential information;
(i) contract or group of related contracts with the same Person for the sale of assets or services which generate in excess of $100,000 in revenues in any 12-month period;
(j) contract which shall not include advances made prohibits the Company from freely engaging in business anywhere in the world;
(k) contract relating to an employee the purchase, distribution, marketing or sales of the Company Company's or any other Person's products (other than purchase and sales orders entered into in the Ordinary Course ordinary course of Businessbusiness consistent with past practices and the performance of which by the parties thereto is reasonably expected to be substantially completed within 30 days of the execution thereof);
(xl) contract with any Contract relating Affiliate; or
(m) other contract material to the settlementbusiness of the Company. Except as specifically disclosed in SCHEDULE 4.14, conciliation the Company has performed in all material respects all obligations required to be performed by it and is not in default under or similar agreement with any Governmental Authority in breach of nor in receipt of any claim of default or action or pursuant breach under any such contract to which it is a party or by which any of its Assets may be bound; and to the Company will have Company's Knowledge no event has occurred which with the passage of time or the giving of notice or both would result in such a default or breach under any material outstanding obligation after such contract. To the date of this Agreement;
(xi) Company's Knowledge, no other party to any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant contract to which the Company is granted a lease in, party or by which its Assets may be bound is in default under or in breach of such contract and no event has occurred which with the passage of time or giving of notice or both would result in a sublease in, default or the right breach under any such contract. There has been made available to use or occupy any Leased Real Property facility;
Parent (xiiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change true and complete copy of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation each of the transaction contemplated by this Agreement;
contracts listed on SCHEDULE 4.14, together with all amendments, waivers or other changes thereto, and (xivii) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess complete description of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under all oral contracts to which the Company is a licensor party or otherwise grants to a third party by which any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably their Assets may be expected to have a Company Material Adverse Effectbound.
(b) Each of the Contracts set forth or required to be set forth on Section 3.12
Appears in 1 contract
Sources: Merger Agreement (Opus360 Corp)
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules sets Except as set forth in Part 3.16 and for any Contract with Buyer, Seller is not a list party to or otherwise obligated under any of the following Contracts that principally relate to the Business, the Purchased Assets, or the Assumed Liabilities, whether written or oral:
(a) Any single Contract providing for an expenditure in excess of $15,000 or Contracts with the same or affiliated vendor(s) providing for an expenditure in excess of $25,000, in the aggregate, for the same, or a related product or service;
(b) Any single Contract providing for the sale of products or services in an amount in excess of $15,000 or Contracts with the same or affiliated customer(s) providing for the sale of products or services in an amount in excess of $25,000;
(c) Any Contract providing for the purchase of goods or services which has not yet been completed;
(d) Any Contract pursuant to which Seller (with respect to the Company Business) is the lessee or sublessee of, or holds or operates, any real or personal property owned or leased by any other person or entity (other than leases of personal property leased in the Ordinary Course with annual lease payments no greater than $10,000);
(e) Any revocable or irrevocable power of attorney relating to the Purchased Assets or the Business granted to any person, firm or corporation for any purpose whatsoever;
(f) Any arrangement or other agreement relating to the Purchased Assets or the Business which involves (i) a party:sharing of profits, (ii) future payments of $5,000 or more per annum to other persons, or (iii) any teaming, joint venture, partnership or similar contract or arrangement;
(g) Any sales agency, sales representation, distributorship or franchise agreement relating to the Purchased Assets or the Business;
(h) Any arrangement or other agreement with, including any payments to, a physician;
(i) Any Contract prohibiting Seller (with respect to the Business) from competing with any partnership, joint venture, Person or similar Contract that involves prohibiting Seller or any Business Employee (other than for the sharing benefit of profits or lossesSeller) from freely engaging in the Business anywhere in the world;
(iij) any Any Contract wherein Seller (with respect to the Business) agreed to indemnify a Significant Customer customer for damages or Significant Supplierlosses arising from the customer’s own actions;
(iiik) any Labor AgreementAny union or collective bargaining agreement;
(ivl) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Any Contract pursuant to which the Company is Business (A) uses any Intellectual Property of any other Person (other than unmodified, commercially available, off-the-shelf computer software that (1) has a replacement cost per license agreement (for all of the Business’s end users of such software) of less than $100,000 per year or (2) all of such excluded software together has an aggregate replacement cost of $300,000 or less), (B) incorporates any Intellectual Property of any other Person in any of its Products, (C) granted a lease in, a sublease in, or agreed to grant any other Person the right to use any material Intellectual Property, (D) developed or occupy had developed any Leased Real Property facilitymaterial Intellectual Property, or (E) assigned or agreed to assign ownership of any material Intellectual Property;
(xiiim) Any Contract between Seller (in connection with the Business), on the one hand, and any Contract that requires a consent to subsidiary, shareholder, director, or otherwise contains a provision relating to a “change officer or Affiliate, or family member of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation Affiliate, of the transaction contemplated by this AgreementBusiness or a Seller (in connection with the Business) on the other hand;
(xivn) Any Contract or option relating to the acquisition or sale by the Business of any material asset or group of assets, or any other ownership interest in, the Business, other than this Agreement; or
(o) Any Contract that containing (A) involves a future most-favored-nation, best pricing or potential Liability other similar term or receivableprovision by which another party to such Contract is or could become entitled to any benefit, right or privilege which, under the terms of such Contract, must be at least as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term favorable to such party as those offered to another Person or (B) has a term greater than one year and cannot be cancelled by the Companyrequirement to deal exclusively with or grant exclusive rights or rights of first refusal to any customer, as applicablevendor, without penalty supplier, distributor, contractor or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectparty.
(b) Each of the Contracts set forth or required to be set forth on Section 3.12
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules sets forth a list The “Contracts Schedule” attached hereto lists all of the following Contracts contracts, agreements or other arrangements to which the Company is a party:party or by which any of its assets or properties is bound (the “Scheduled Contracts”):
(i) contracts which involve commitments to make capital expenditures or which provide for the purchase of goods or services by the Company from any partnership, joint venture, one Person under which the undelivered balance of such products or similar Contract that involves the sharing services has a purchase price in excess of profits or losses$50,000;
(ii) any Contract with contracts which provide for the sale of products or services by the Company and under which the undelivered balance of such products or services has a Significant Customer or Significant Suppliersale price in excess of $100,000;
(iii) contracts relating to Indebtedness of the Company, or any Labor Agreementguaranty by the Company of any obligation in respect of borrowed money, or any Lien on any asset of the Company;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract and non-competition agreements with any current directoremployee, officer, officer or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in consultant that is not terminable on 60 or fewer days notice by the case of a severance, incentive compensation, retention Company without Liability for any penalty or change of control agreement, an aggregate payment in excess of $100,000)severance payment;
(v) contracts pursuant to which the Company is (A) a lessee of any Contract 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 $5,000, or (B) a lessor of any property, personal or real, or allows any other Person to hold or operate any tangible personal property owned by the Company;
(vi) collective bargaining agreement or other similar contract with another Person concerning confidentiality or non-competition materially limiting or restricting any labor union;
(vii) agreement that restricts the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) compete with any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) joint venture or partnership agreement involving a sharing of profits, losses, costs or liabilities by the Company with any agreement relating to the incurrence, assumption, surety or guarantee other Person;
(ix) power of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) attorney granted by or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ixx) any Contract under which the Company has made advances or loans to any other Person (which shall agreement not include advances made to an employee of the Company entered into in the Ordinary Course ordinary course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;business; and
(xi) any Contract with a Governmental Authority or pursuant other agreement that is material to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effect.
(b) Each The Company has provided to Parent a true, correct and complete copy of each Scheduled Contract. Neither the Company, nor to the Knowledge of the Contracts set forth or required Company, any other party to be a Scheduled Contract has breached in any material respect such Scheduled Contract, except to the extent such breach has been duly and timely cured. The Company is not in receipt of any written claim of default under any such Scheduled Contract. Each Scheduled Contract is in full force and effect and is a valid and binding obligation of the Company, and, to the Knowledge of the Company, a valid and binding obligation of the other party thereto. Except as set forth on Section 3.12the Material Restrictions Schedule, the transactions contemplated by this Agreement do not require the consent of any party to any Scheduled Contract, will not result in a violation or breach of or default under any Scheduled Contract, and will not otherwise cause any Scheduled Contract to cease to be in full force and effect on the same terms following the Closing.
Appears in 1 contract
Sources: Merger Agreement (Rimage Corp)
Contracts and Commitments. Except as set forth on Schedules 3.8(a), 3.9(a), 3.12 and 3.13(c), neither the Company nor any of its Subsidiaries is a party to or bound by any of the following types of agreements (whether written or oral):
(a) Section 3.12 of the Company Disclosure Schedules sets forth a list of the following Contracts to which the Company is a party:
(i) any partnership, partnership agreement or joint venture, or similar Contract that involves the sharing of profits or lossesventure agreement;
(iib) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract agreement with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter or any of its Subsidiaries, or that would limit Parent, any of its Affiliates or the Surviving Corporation after the Effective Time, from entering into or engage engaging in any market or line type of business anywhere in the world at any time upon any terms of their choosing, including agreements with exclusivity provisions, non-compete provisions, non-solicitation provisions (of customers, prospects or otherwise including provisions on joint price-fixingemployees), “most favored nation”, market customer” pricing provisions or customer sharing, exclusivity or market classificationother similar provisions;
(vic) any Contract for the sale of agreements granting any Person preferential rights to purchase any of the Company’s or any of its Subsidiaries’ assets of the Company, other than in the Ordinary Course of Businessor services;
(viid) any Contract agreement for capital expenditures by the Company in excess of $50,000;
(e) any lease, sub-lease, license, sub-license or other agreement with respect to real or personal property or equipment for which the annual rental exceeds $25,000 individually or in the aggregate;
(f) any agreement of the Company or any of its Subsidiaries (i) with any non-Subsidiary Affiliate of the Company or (ii) involving an “off balance sheet” arrangement;
(g) any stockholder agreement, investor rights agreement, registration rights agreement, limited liability company operating agreement, director or officer indemnification agreement or similar entity governance agreement;
(h) any agreement relating to the acquisition by acquisition, issuance, voting, registration, sale or transfer, preemptive rights, participation rights, rights of first refusal, repurchase or redemption rights of or with respect to any Securities of the Company or any of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Businessits Subsidiaries;
(viiii) any agreement relating to collective bargaining, labor, employment, consulting, termination, compensation, bonus, profit sharing, severance, stock option, stock purchase, retirement, retention, pension, health, accident, group insurance, liability, death benefit and other agreements or plans relating to compensation of benefits for officers, employees or independent contractors of the Company or any of its Subsidiaries;
(j) any agreement (including any indenture, letter of credit, credit agreement, capital lease, conditional sale agreement or sale/leaseback obligation) relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding indebtedness by the Company or any of its Subsidiaries or any agreement pursuant to guarantee lease payments of the Company) or to mortgagingwhich an Encumbrance, pledging or otherwise placing a Lien (other than a Permitted Lien) Encumbrance, exists on any portion of the assets of the CompanyCompany or any of its Subsidiaries;
(ixk) any Contract under agreement (i) related to the purchase or sale of real property or (ii) related to the purchase or sale of any business whether by merger, purchase and sale of securities, purchase and sale of assets or otherwise;
(l) any agreement with any customer listed or required to be listed on Schedule 3.20;
(m) any agreement involving payments in excess of $50,000 that cannot by its terms be terminated by the Company or any of its Subsidiaries within thirty (30) days or less notice without penalty or whose term continues beyond one year after the date hereof;
(n) any agreement (or group of related agreements) the performance of which required or requires the delivery of assets or services from or to the Company or any of its Subsidiaries that were or are valued in excess of $100,000 since December 31, 2013 or that is reasonably expected to require the delivery of assets or services from or to the Company or any of its Subsidiaries that are valued in excess of $100,000 in the twelve (12) month period following Closing;
(o) any agreement (or group of related agreements) that requires a payment by or to the Company or any of its Subsidiaries in excess of $100,000 in the twelve (12) month period following the Closing;
(p) any agreement that contains pricing or margin provisions that are subject to caps, floors or collars, or any other agreement that involves a hedge, swap, derivative, future, put or call;
(q) any agreement that prohibits or restricts the payment of dividends or distributions in respect of the Securities of the Company or any of its Subsidiaries, prohibits or restricts the pledging of the Securities or assets of the Company or any of its Subsidiaries or prohibits or restricts the issuance of guarantees by the Company or any of its Subsidiaries, in each case that will not be terminated at or prior to the Effective Time;
(r) any agreement with any Governmental Authority;
(s) any material settlement agreement entered into within the past three (3) years;
(t) any agreement pursuant to which the Company or any of its Subsidiaries has made advances an obligation to make an investment in or loans loan to any other Person;
(u) any agreement granting to any Person (which shall not include advances made a right of first refusal, a right of first offer or an option to an employee purchase, acquire, sell or dispose of any assets or services of the Company in the Ordinary Course or any of Business)its Subsidiaries;
(v) any agreement that provides for automatic or permissive termination upon, or that requires a payment upon, a change of control;
(w) any fuel purchase agreement or contract; or
(x) any Contract relating other agreement that is material to the settlementCompany Business or the operations, conciliation prospects, properties, financial condition or similar agreement with any Governmental Authority cash flows of any claim or action or pursuant to which the Company will have or any material outstanding of its Subsidiaries. Each of the contracts set forth on Schedules 3.8(a), 3.9(a), 3.12 and 3.13(c) (the “Material Contracts”) is in full force and effect and constitutes a legal, valid and binding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Companyand/or its Subsidiaries, as applicable, without penalty and is enforceable against them in accordance with its terms, except as such enforceability may be limited by the General Enforceability Exceptions. The Company or further payment its Subsidiary, as applicable, has performed all of its material obligations (except those that have not yet become due) under, and without more than thirty (30) days’ notice;
(xv) Contracts under which is not in violation or breach of or default under, any of the Company is a licensor Material Contracts, except for such violations or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis breaches that, in the Ordinary Course of Business);
(xvi) any other agreement (aggregate, could not described in clauses (i) to (xvii) above) the termination of which would have or reasonably be expected to have a Company Material Adverse Effect.
. The Company or its Subsidiary, as applicable, has either (bi) Each paid in full or (ii) properly accrued on the Financial Statements and included as a current liability for purposes of the calculation of the Company’s Estimated Working Capital all amounts due from them in connection with the Material Contracts. To the Company’s Knowledge, each of the other parties to each of the Material Contracts set forth has performed all of their material obligations (except those that have not yet become due) under, and is not in violation or required breach of or default under, such Material Contracts. Neither the Company nor any of its Subsidiaries has been notified by any party to be set forth any of the Material Contracts of such party’s intention or desire to terminate or modify in any material respect such party’s Material Contract, and to the Knowledge of the Company, no such party intends or desires to terminate or modify in any material respect any such Material Contract. Neither the Company nor any of its Subsidiaries is a party to or bound by any agreement or agreements the terms of which were arrived at by less than arm’s length negotiations or bargaining. The Company has provided Parent with true and correct copies of all Material Contracts, including an accurate and complete summary of all oral Material Contracts. With respect to the agreements specified under the heading “Forms of Agreements” on Section Schedule 3.12, Parent has agreed to allow the Company to provide Parent with forms of such agreements in lieu of providing fully-executed copies of individual agreements, and in consideration thereof, the Company represents and warrants to Parent that all such agreements entered into by the Company with a counterparty (each such counterparty being listed opposite the name of such agreement on Schedule 3.12) were entered into on a form identical in all material respects to the one provided to Parent by the Company.
Appears in 1 contract
Sources: Merger Agreement (Forward Air Corp)
Contracts and Commitments. (a) Section 3.12 Except as set forth on the Contracts Schedule, neither the Company nor any of its Subsidiaries is a party to any: (i) Contract involving a partnership, limited liability company, joint venture or similar Contract with another party; (ii) collective bargaining agreement or other Contract involving any labor agreement or collective bargaining agreement with any labor union, trade union, works counsel, or other employee representative body; (iii) Contract which contains a covenant that purports to restrict any business activity of the Company Disclosure Schedules sets forth a list of or its Subsidiaries or limit the following Contracts to which the Company is a party:
(i) any partnership, joint venture, or similar Contract that involves the sharing of profits or losses;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability freedom of the Company or its Subsidiaries to enter into or engage in any market or line of business or otherwise engage in business in any geographical area or compete with any Person; (iv) Contract that provides the Company or any customer of the Company with pricing, discounts or benefits that change based on the pricing, discounts or benefits offered to other customers, including provisions on joint price-fixing, any Contract containing “most favored nation”, market ” provisions; (v) Contract the performance of which extends beyond one (1) year or customer sharing, exclusivity that involves the cash payment or market classification;
potential cash payment by or to the Company of more than one hundred thousand dollars ($100,000) per year which cannot be terminated within thirty (30) days after giving notice of termination without resulting in any liabilities to the Company; (vi) Contract with any Contract for the sale Governmental Body; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14 or any of the assets Employee Benefits Schedule relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract (excluding at-will offer letters that do not contemplate retention, severance, change in control payments, or other material benefits in the event of termination of such Person which are material to the Company and its Subsidiaries taken as a whole and not otherwise set forth on the Contracts Schedule or Employee Benefits Schedule) for the employment or engagement of any officer, individual employee or other Person on a full-time or consulting basis that is not terminable at-will, provides for base compensation in excess of two hundred thousand dollars ($200,000) per annum, or provides for retention, severance, change in control payments, or other material benefits in the event of termination of such Person other than as set forth in Section 5.14 or any of the Company, other than in the Ordinary Course of Business;
Employee Benefits Schedule relating thereto; (viix) any Contract or indenture relating to the acquisition by the Company borrowing of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
Company or any of its Subsidiaries; (ixxi) guaranty of any obligation for borrowed money or other material guaranty; (xii) lease or Contract under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds three hundred thousand dollars ($300,000); (xiii) 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 thousand dollars ($100,000); (xiv) other than purchase orders entered into in the ordinary course of business, Contract or group of related Contracts with any customer required to be listed on the Customers and Suppliers Schedule; (xv) Contracts relating to the licensing of Intellectual Property by the Company has made advances or loans any of its Subsidiaries to a third-party or by a third-party to the Company or any of its Subsidiaries, in each case other than (1) Contracts involving licenses of commercially available, off-the-shelf software having an annual value of less than $75,000, (2) Contracts primarily for the provision of services where the granting or obtaining (or agreement to obtain) any right to use, or permission or agreement to permit any other Person to use, any Intellectual Property is ancillary or incidental to the transactions contemplated in such Contract, and (which shall not include advances made 3) non-exclusive licenses granted in the ordinary course of business; (xvi) other material Contract limiting or otherwise adversely affecting the Company’s or any of its Subsidiaries’ ability to an employee of use or disclose any material Company Intellectual Property, in each case, other than Contracts entered into by the Company or any of its Subsidiaries with customers in the Ordinary Course ordinary course of Business);
business; (xxvii) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or Contracts pursuant to which the Company will have has an obligation to indemnify, defend or hold harmless any material outstanding obligation after Person for claims or actions relating to the date infringement, misappropriation or violation of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which Intellectual Property, other than Contracts entered into by the Company participates or any of its Subsidiaries in the ordinary course of business; and (xviii) Contracts relating to the acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) of any program involving a Governmental Authority;
Person or material line of business entered into during the past three (xii3) any Contract pursuant to which the Company is granted a lease in, a sublease in, years or the right to use future acquisition or occupy disposition (whether by merger, sale of stock, sale of assets or otherwise) of any Leased Real Property facility;
(xiii) any Contract that requires a consent to Person or otherwise contains a provision relating to a “change material line of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectbusiness.
(b) Each As of the date hereof, each of the Contracts set forth listed or required to be listed on the Contracts Schedule is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, except as may be limited by the Enforceability Exceptions. Except as set forth on Section 3.12the Contracts Schedule, as of the date hereof, neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Contract listed on the Contracts Schedule, and, to the knowledge of the Company, the other party to each of the Contracts listed on the Contracts Schedule is not in material default thereunder. Except as set forth on the Contracts Schedule, as of the date hereof, no event has occurred that with the lapse of time or the giving of notice or both would constitute a material breach or default on the part of the Company, or any Subsidiary of the Company or, to the knowledge of the Company, any other party under any Contract listed on the Contracts Schedule. To the knowledge of the Company, as of the date hereof, (i) no party to any Contract listed on the Contracts Schedule has exercised any termination rights with respect thereto, and (ii) no party has given written notice of any material dispute with respect to any Contract listed on the Contracts Schedule. The Company has made available to the Purchaser true and correct copies of each Contract listed on the Contracts Schedule, together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Whole Earth Brands, Inc.)
Contracts and Commitments. Except as set forth on Part 3.12 of the Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to or otherwise obligated under any of the following, whether written or oral:
(a) Section 3.12 Any single contract or purchase order, or any series of contracts or purchase orders with the same or affiliated vendor(s), providing for an expenditure by the Company Disclosure Schedules sets forth a list or any of the following Contracts to which the Company is a party:
(i) any partnership, joint venture, or similar Contract that involves the sharing of profits or losses;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment its Subsidiaries in excess of $100,000);.
(vb) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of Any contract providing for an expenditure by the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;its Subsidiaries for the purchase of any real property.
(vic) Any contract, bid or offer to sell products or to provide services to third parties which (i) the Company or any Contract for of its Subsidiaries knows or has reason to believe is at a price which would result in a net loss to the Company or the Subsidiaries which are party thereto on the sale of such products or provision of such services or (ii) contains terms or conditions that the Company or the Subsidiaries which are party thereto cannot reasonably expect to satisfy or fulfill in whole or in part.
(d) Any contract pursuant to which the Company or any of its Subsidiaries is the assets of the Companylessee or sublessee of, or holds or operates, any personal property owned or leased by any other person or entity (other than contracts entered in the Ordinary Course of Business;Business with annual lease payments no greater than $100,000).
(viie) any Contract relating Any contract pursuant to the acquisition by which the Company or any of its Subsidiaries is the lessor, sublessor or lessee of, or permits any operating business third party to operate, any real or the assets personal property owned or capital stock of any other Person, other than in the Ordinary Course of Business;leased by a Seller or an affiliate thereof.
(viiif) Any revocable or irrevocable power of attorney granted to any agreement relating to the incurrenceperson, firm or corporation for any purpose whatsoever.
(g) Any loan agreement, indenture, promissory note, conditional sales agreement, mortgage, security agreement, letter of credit arrangement, guarantee, endorsement, assumption, surety indemnity, surety, foreign exchange contract, accommodation or guarantee other similar type of agreement.
(h) Any arrangement or other agreement which involves (i) a sharing of profits, (ii) future payments of $100,000 or more per annum to another person, or (iii) any joint venture, partnership or similar contract or arrangement.
(i) Any buying or sales agency, sales representation, distributorship or franchise agreement.
(j) Any contract providing for the payment of any Indebtedness (excluding any agreement to guarantee lease payments cash or other benefits upon the sale or change of control of the Company) Company or to mortgaging, pledging any of its Subsidiaries or otherwise placing a Lien (other than a Permitted Lien) on any substantial portion of the assets of the Company;Company or any of its Subsidiaries in an amount or with a value in excess of $20,000.
(ixk) any Contract under which Any contract prohibiting the Company has made advances or loans to any other Person (which shall not include advances made to an employee of its Subsidiaries, or the employees of the Company or any of its Subsidiaries, from freely engaging in any business anywhere in the world, or prohibiting the disclosure of trade secrets or other confidential or proprietary information by the Company or any of its Subsidiaries (other than confidentiality agreements entered into with prospective acquirers of the Company and its Subsidiaries prior to October 28, 2004, which will be provided to Buyer on the Closing Date).
(l) Any contract or commitment not made in the Ordinary Course of Business);Business with respect to which the Company has any stated liability or obligation involving more than $100,000.
(xm) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or Any contract pursuant to which the Company will have or any material outstanding obligation after the date of this Agreement;
(xi) its Subsidiaries has acquired or disposed of or has agreed to acquire or dispose of any Contract with a Governmental Authority securities or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease inbusiness, a sublease in, product line or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectlike.
(b) Each of the Contracts set forth or required to be set forth on Section 3.12
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 6.11 of the Company Disclosure Schedules sets forth a an accurate and complete list of each of the following written Contracts to which of the Company is a partytogether with all amendments, modifications, supplements, exhibits, attachments, waivers or other changes thereto (all Contracts, amendments, modifications and supplements required to be listed on Section 6.11 of the Company Disclosure Schedules, together with all Leases listed or otherwise disclosed on Section 6.8 of the Company Disclosure Schedules and all Contracts related to the Company Intellectual Property, being referred to herein as “Material Contracts”). Material Contracts include:
(i) any partnership, joint venture, or similar 1. each Contract that involves of the sharing of profits or losses;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) Company involving aggregate consideration in excess of $100,000 (or, in the case of a severance, incentive compensation, retention 20,000 or change of control agreement, an aggregate payment in excess of $100,000);
(v) requiring performance by any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater party more than one year and from the date hereof, which, in each case, cannot be cancelled by the Company, as applicable, Company without penalty or further payment and without more than thirty (30) days’ notice;
2. all Contracts that relate to the acquisition or disposition of any business, any stock or assets of the Company or any other Person or any real property (xv) whether by merger, sale of stock, sale of assets or otherwise), including any Contract that grants any rights of first refusal, rights of first offer or other similar rights to any Person with respect to any stock or assets of the Company, in each case involving consideration in excess of $20,000;
3. all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts under to which the Company is a licensor party;
4. all employment agreements and Contracts with independent contractors or otherwise grants consultants (or similar arrangements) to which the Company is a third party that are not terminable at will without liability for any rights penalty or severance payment;
5. except for Contracts relating to use any Intellectual Property trade receivables, all Contracts providing for the borrowing or lending of money (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Businessincluding, without limitation, guarantees);
(xvi) 6. all Contracts with any Governmental Authority to which the Company is a party;
7. all Contracts that restrict the business activity of the Company or that limit or purport to limit the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period of time, or that restrict the Company from acquiring any security or business or soliciting any customer or prospective employee;
8. all Contracts between or among the Company, on the one hand, and the Seller or any Affiliate of Seller, on the other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effecthand; and
9. all Leases.
(b) Each Material Contract (i) is in full force and effect; (ii) is a valid and binding obligation of the Contracts set forth or required Company enforceable in accordance with its terms; (iii) to the Company’s Knowledge, will continue to be set forth valid, existing and in full force and effect on the same terms immediately following the consummation of the Contemplated Transactions; and (iv) was entered into on an arm’s-length basis in the ordinary course of business and consistent with past practices. There has not occurred any material breach, default, event of default or, to the Company’s Knowledge, any circumstance that with notice or the passage of time, or both, would (x) constitute a material default or material event of default of the Company or, to the Company’s Knowledge, of any other party to a Material Contract or (y) give to others any right of termination, acceleration, suspension, revocation, cancellation or material amendment of such Material Contract.
(c) Buyer has heretofore been supplied with a true and correct copy of all such material written Material Contracts (and a true and correct written description of all oral contracts) which are disclosed in Section 3.126.11 of the Company Disclosure Schedules, together with all amendments, exhibits, attachments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. The Company is not a party to any written or oral:
(a) Section 3.12 contract for the employment of the Company Disclosure Schedules sets forth a list of the following Contracts to which the Company is a party:
(i) any partnershipofficer, joint ventureindividual employee, or similar Contract that involves the sharing of profits other Person on a full-time, part-time, consulting or lossesother basis;
(iib) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract contract relating to the acquisition by the Company of any operating business Funded Indebtedness or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion Asset or group of the assets Assets of the Company;
(ixc) contract involving the sale of the accounts receivable of the Company to any Contract other Person at a discount;
(d) guarantee of any obligation for borrowed money or otherwise;
(e) contract with respect to the lending or investing of funds;
(f) contract under which the Company has made advances is the lessee of or loans the holder or operator of any real or personal property owned by any other Person;
(g) contract under which the Company is the lessor of or permits any third Person to hold or operate any real or personal property owned or controlled by the Company;
(h) assignment, license, indemnification or agreement with respect to any other form of intangible property, including, without limitation, any Intellectual Property or confidential information;
(i) contract or group of related contracts with the same Person for the sale of assets or services which generate in excess of $250,000 in revenues in any 12-month period;
(j) contract which shall not include advances made prohibits the Company from freely engaging in business anywhere in the world;
(k) contract relating to an employee the purchase, distribution, marketing or sales of the Company Company's, or any other Person's products (other than purchase and sales orders entered into in the Ordinary Course ordinary course of Businessbusiness consistent with past practices and the performance of which by the parties thereto is reasonably expected to be substantially completed within 30 days of the execution thereof);
(xl) contract with any Affiliate; or
(m) any Contract relating other contract Material to the settlement, conciliation business of the Company. The Company has performed in all Material respects all obligations required to be performed by it and is not in default under or similar agreement with any Governmental Authority in breach of nor in receipt of any claim of default or action or pursuant breach under any such contract to which it is a party or by which any of its Assets may be bound; and to the Company will have Company's knowledge no event has occurred which, with the passage of time or the giving of notice or both, would result in such a default or breach under any material outstanding obligation after such contract. To the date of this Agreement;
(xi) Company's knowledge, no other party to any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant contract to which the Company is granted a lease in, party or by which its Assets may be bound is in default under or in breach of such contract and no event has occurred which with the passage of time or giving of notice or both would result in a sublease in, default or breach under any such contract. There has been made available to the right to use or occupy any Leased Real Property facility;
Purchaser (xiiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change true and complete copy of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation each of the transaction contemplated by this Agreement;
contracts listed on the Disclosure Letter, together with all amendments, waivers or other changes thereto, and (xivii) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess complete description of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under all oral contracts to which the Company is a licensor party or otherwise grants to a third party by which any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably its Assets may be expected to have a Company Material Adverse Effectbound.
(b) Each of the Contracts set forth or required to be set forth on Section 3.12
Appears in 1 contract
Sources: Convertible Note Purchase Agreement (Kahiki Foods Inc)
Contracts and Commitments. (a) Except as set forth in Section 3.12 4.6(a) of the Company Sellers’ Disclosure Schedules sets forth a list Schedule and excluding the Completed Contracts, none of the following Contracts to which the Company Companies is a partyparty to or is bound by:
(i) any partnershipagreement, joint venture, contract or similar Contract that involves commitment requiring the sharing expenditure or series of profits related expenditures of funds in excess of C$500,000 or lossesinvolving or which may involve the receipt by the Companies or any of them of more than C$500,000 over the term thereof;
(ii) any Contract with agreement, contract or commitment requiring the payment for goods or services whether or not such goods or services are actually provided, the provision of goods or services at a Significant Customer price less than prevailing market prices in effect at the time of execution or Significant Supplierthat was not entered into on an arm’s-length basis;
(iii) any Labor Agreementagreement, contract or commitment involving any loan or advance to, or investment in, any Person or any agreement, contract, commitment or understanding relating to the making of any such loan, advance or investment;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess contract or commitment with either Seller or any of $100,000)its Affiliates;
(v) any Contract with another Person concerning confidentiality agreement, contract or non-competition materially limiting or restricting the ability commitment relating to bonding arrangements of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classificationCompany;
(vi) any Contract for the sale of any of the assets of the Companylabor union, management service, employment, deferred compensation, retirement compensation, severance, bonus, consulting or other than in the Ordinary Course of Businesssimilar type contract or agreement;
(vii) any Contract relating agreement, contract or commitment that would limit the freedom of the NACGI Companies, Newco or Acquisition Corp. following the Closing Date to the acquisition by the Company engage in any line of business, to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any operating of their real or personal property or to compete with any Person or to engage in any business or the assets or capital stock of activity in any other Person, other than in the Ordinary Course of Businessgeographic area;
(viii) any agreement relating agreement, lease, contract or commitment or series of related agreements, leases, contracts or commitments not entered into in the ordinary course of business or, except for agreements to purchase or sell goods and services entered into in the ordinary course of business, not cancelable by the Companies, without penalty to the incurrenceCompanies, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Companywithin 60 calendar days;
(ix) any Contract under which agreement or contract obligating any of the Company has made advances Companies or loans that would obligate or require any subsequent owner of any of the Companies to provide for indemnification or contribution with respect to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business)matter;
(x) any Contract sales, distributorship, agency or similar agreement relating to the settlement, conciliation products sold or similar agreement with services provided by any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this AgreementCompanies;
(xi) any Contract with a Governmental Authority license, royalty or pursuant to which the Company participates in any program involving a Governmental Authoritysimilar agreement;
(xii) any Contract pursuant to which the Company is granted a lease injoint venture, a sublease inpartnership, shareholder buy sell, stock restriction, voting or the right to use similar agreement, contract or occupy any Leased Real Property facilitycommitment;
(xiii) any Contract that requires a consent agreement, contract or commitment under which any Company is lessor of or permits any third party to hold or otherwise contains a provision relating to a “change operate any owned or leased property of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this AgreementCompanies;
(xiv) any other Contract agreement, contract or commitment containing any terms restricting any Company from purchasing, leasing, using or receiving goods, services or products (including Equipment) from any Person or prohibiting or limiting the rights of any Company to make, use, sell, lease or provide goods, services or products (including Equipment) to any Person, except for agreements, contracts or commitments that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and canare not be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ noticeMaterial;
(xv) Contracts under any agreement, contract or commitment for the purchase of materials or supplies or the sale or rental of products, equipment or services which is Material and includes “take or pay”, “meet or release”, “most favored nations” or similar pricing or delivery arrangements, or that contains any provisions requiring any price redetermination, price readjustment or potential refund of amounts paid to any of the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business)Companies;
(xvi) any agreement, contract or commitment evidencing any warranty obligation of any Company with respect to goods, services, equipment or products manufactured, sold, leased, rented or transported by it other agreement (than warranty obligations that are not described in clauses (i) to Material;
(xvii) aboveany agreement, contract or commitment imposing on any Company secrecy or non-disclosure obligation;
(xviii) any agreement, contract or commitment providing for a merger, amalgamation, reorganization, share exchange or purchase or sale of any business, or all or substantially all of the termination assets of any Person or any capital stock;
(xix) any agreement, contract or commitment with any Governmental Entity which is Material and is subject to price redetermination or renegotiation; or
(xx) any agreement, contract or commitment to any employee involving an amount that is Material with respect to any increase in compensation, rate of compensation, commission, severance payment, bonus or similar compensating payment, including, without limitation, any compensation, bonus or other payment, the payment or amount of which would reasonably be expected to have is contingent upon the occurrence of the Transactions, the change of control of any Company or the transfer of all or a Company Material Adverse Effectsignificant part of the assets of any Company.
(b) Each None of the Contracts Companies is in breach of, or in default (and to the Knowledge of the Sellers there is no event or circumstance that with notice, or lapse of time or both, would constitute an event of default) under, (i) any provision of any of the agreements, contracts or commitments listed in Section 4.6(a) of the Sellers’ Disclosure Schedule, or (ii) any other contract, agreement or commitment to which any of them is a party except for breaches or defaults that are not, singly or in the aggregate, Material. All of the contracts, agreements and commitments listed in Section 4.6(a) of the Sellers’ Disclosure Schedule are in full force and effect. Except as set forth in Section 4.6(b) of the Sellers’ Disclosure Schedule, there are no pending or, to the Knowledge of the Sellers, threatened disputes with respect to any contract, agreement or required commitment to which any Company is a party except for disputes that are not, singly or in the aggregate, Material.
(c) The enforceability and terms and provisions of the contracts, agreements and commitments to which any Company is a party will not be set forth on Section 3.12adversely affected by the execution and delivery of this Agreement or the consummation of the Transactions, except for adverse effects that are not, singly or in the aggregate, Material.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.12 Except as set forth on Schedule 2.15(a) or Schedule 2.18(a), none of the Company Disclosure Schedules sets forth a list Companies is party, or subject, to any of the following Contracts to which (whereunder the Company is obligations of the parties thereto have not been substantially completed) (each a party:“Material Contract”):
(i) any partnership, joint venture, Contract relating to any completed or similar Contract that involves the sharing of profits pending business acquisition or lossesdivestiture;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employmentbonus, severance, incentive compensation, retention, change of control, pension, profit sharing, retirement or consulting Contract with any current director, officer, or employee requiring an annual payment other form of cash deferred compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000)plan;
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(viiii) any Contract for the sale of any capital assets, including Rolling Stock, in excess of $10,000;
(iv) any Contract for the assets purchase of the Companyany capital assets, other than including Rolling Stock, in the Ordinary Course excess of Business$50,000;
(v) any Contract for capital expenditures in excess of $50,000;
(vi) any Contract with an owner operator or with respect to any employee or driver leasing arrangement affecting Rolling Stock;
(vii) any Contract relating to the acquisition by the Company involving unpaid amounts in excess of any operating business or the assets or capital stock of any other Person, other than $25,000 with a “change in the Ordinary Course of Businesscontrol” clause;
(viii) any agreement relating to the incurrence, assumption, surety stock option or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Companysimilar plan;
(ix) any Contract under which (A) for the Company has made advances employment of any officer, individual employee or loans to other person, (B) providing for the payment of any cash or other Person (which shall not include advances made to an employee compensation or benefits upon the consummation of the Company Transactions (or any of them), or (C) that provides severance or other benefits for any person or, in each case, that is otherwise not immediately terminable by any of the Ordinary Course of Business)Companies without cost or liability;
(x) any Contract relating to under which any of the settlementCompanies created, conciliation incurred or similar agreement with assumed any Governmental Authority Indebtedness (including any conditional sales Contract, sale-leaseback, or capitalized lease) or mortgaging, pledging or otherwise granting or placing a Lien on any portion of any claim or action or pursuant to which of the Company will have any material outstanding obligation after the date of this AgreementCompanies’ assets;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in guaranty of any program involving a Governmental AuthorityIndebtedness;
(xii) any lease or other Contract pursuant to under which it is lessee of or holds, occupies, operates or uses any real or personal property (including Rolling Stock) owned by any other Person, for which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facilityannual rental exceeds $25,000;
(xiii) any lease or other Contract that requires a consent under which it is lessor of or permits any third party to hold, occupy, operate or otherwise contains a provision relating to a “change of control,” use any real or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay personal property for which the consummation of the transaction contemplated by this Agreementannual rental exceeds $50,000;
(xiv) any other Contract that (A) involves or group of related Contracts with the same party for the purchase by the Companies of products or services, under which the undelivered balance of such products and services has a future or potential Liability or receivable, as the case may be, purchase price in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice25,000;
(xv) any Contract or group of related Contracts with the same party for the sale by the Companies of products or services under which the Company is undelivered balance of such products or services has a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis sales price in the Ordinary Course excess of Business)$25,000;
(xvi) any other agreement (lease or other Contract which cannot described be canceled by the Companies without penalty or further payment or obligation and without more than 60 days’ notice and with remaining fixed payments in clauses (i) to excess of $25,000;
(xvii) aboveany Contract containing covenants that in any way purport to restrict the right of any of the Companies to engage in its current line of business, engage in any line of business, compete with any Person, or solicit customers, carriers or employees;
(xviii) any currency exchange, commodities, interest rate or other hedging arrangement or forward, swap, derivatives or futures Contract;
(xix) any joint venture, partnership, franchise, joint marketing Contract or any other similar Contract (including sharing of profits, losses, costs or liabilities by any of the termination Companies thereof with any other Person);
(xx) any licensing Contract or other Contract with respect to Intellectual Property, including (A) any Contracts with current or former employees, consultants or contractors regarding the appropriation or non-disclosure of any Intellectual Property and (B) any license agreements related to the use of software (other than license agreements for the use of generally commercially available off-the-shelf software involving total consideration of less than $50,000);
(xxi) any Contract under which any of the Companies thereof has made loans, investments or advances to any other Person, and such investments, advances or loans remain outstanding (except advancement of reimbursable ordinary and necessary business expenses made to directors, officers, employees, and independent contractors of any of the Companies thereof in the ordinary course of business), in which the amount involved exceeds $2,500 in each case or $25,000 in the aggregate;
(xxii) any Contract with any Governmental Authority that involves annual revenue or expense in excess of $25,000;
(xxiii) any Contract pursuant to which rights of any third party are triggered or become exercisable directly and solely, or under which any other consequence, result or effect arises, in connection with or as a result of the execution of this Agreement or the consummation of the Transactions;
(xxiv) any Contract granting rights of first refusal, rights of first negotiation or similar rights or terms to any Person;
(xxv) any Contract providing for the development of Intellectual Property, content or technology, solely or jointly, by or for any of the Companies;
(xxvi) any Contract involving the payment of royalties to any other Person;
(xxvii) any Contract of indemnification or warranty or any Contract containing any support, maintenance, performance metric requirement, non-performance or deficient performance penalty, charge-back of any nature, Lien waiver or service obligation on the part of any of the Companies (except the Companies’ customer or carrier Contracts listed in the Disclosure Schedules and any other Contracts that would not be reasonably expected to result in a liability to the Companies);
(xxviii) any Contract with any consultant (which provides for or will likely involve payments to such consultant in excess of $25,000 after the date of this Agreement) of any of the Companies thereof;
(xxix) any settlement, conciliation or similar Contract, the performance of which would reasonably be expected will involve payment after the date of this Agreement of consideration in excess of $25,000 or governmental monitoring, consent decree or reporting responsibilities;
(xxx) any Contract granting any exclusive rights with respect to have a Company Material Adverse Effectthe products and services or Intellectual Property of any of the Companies of any type or scope to any Person; or
(xxxi) any Contract that grants most favored nation status or similar provision.
(b) Each The Companies have made available to Buyer a true, correct and complete copy of the Contracts set forth or required to be each written Contract set forth on Section 3.12Schedule 2.15(a) or Schedule 2.18(a), to the extent such Contracts are available, including all modifications and amendments thereto, and has made available to Buyer a true, correct and complete written summary of each oral Contract listed on Schedule 2.15(a) or Schedule 2.18(a). With respect to each Contract set forth on Schedule 2.15(a) or Schedule 2.18(a): (i) such Contract is valid, binding and in full force and effect and is enforceable by the Company party thereto in accordance with its respective terms, subject to proper authorization and execution of such Contract by the other parties thereto, and except as enforceability may be limited by bankruptcy laws, other similar Legal Requirements affecting creditors’ rights and general principles of equity affecting the availability of equitable remedies; (ii) to the Sellers’ Knowledge, none of the Companies, nor any other party, is in breach or default in any material respect under such Contract; and (iii) to the Sellers’ Knowledge, there has been no material overpayment or material underpayment with respect to any party’s obligations under such Contract. None of the Companies has received any written notice of the intention of any party to terminate any Contract listed on Schedule 2.15(a).
(c) Schedule 2.15(c) sets forth a list of the Companies’ 10 largest customers (by consolidated revenue for each of the three-month period ended March 31, 2022, the fiscal year ended December 31, 2020 and for the fiscal year ended December 31, 2021), together with a list of the contracts with each such customer, true, correct and complete copies of which, including all modifications and amendments thereto, have been made available to Buyer (collectively, “Customer Contracts”), and none of the Companies nor, to the Sellers’ Knowledge, any other party, is in breach or default under such Customer Contracts. None of the Companies has received a written notice from any customer that such customer intends to terminate, modify, fail to renew, or reduce volumes under, any such Customer Contract or otherwise adversely impact its volumes or business relations with any of the Companies. To the Sellers’ Knowledge there is no fact or circumstance (including the consummation of the Transactions) that could reasonably be expected to cause any such customer to cease or diminish the use of the products or services of any of the Companies after the Closing. None of the Sellers own any equity interest in any of the Companies’ customers, other than less than a 5% ownership of any publicly traded customer.
Appears in 1 contract
Sources: Purchase Agreement (Adams Resources & Energy, Inc.)
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules sets forth a list of Schedule 5.13 lists the following Contracts written contracts or other material oral agreements to which the Company is a party:party or is otherwise bound (other than contracts or agreements that have expired by their terms and for which no party thereto has any rights or obligations after the date of this Agreement):
(i) all contracts with any partnershiplabor union or any bonus, joint venturepension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option or similar plan, or similar Contract any severance agreement or arrangement that involves would require payments to any Person after the sharing date of profits or lossesthis Agreement;
(ii) all written agreements for the employment of any Contract with individual by the Company on a Significant Customer full time, part-time, consulting, or Significant Supplierother basis (not including offer letters for at-will employment);
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, all agreements or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(vii) any Contract indentures relating to the acquisition by the Company borrowing of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of Business;
(viii) any agreement relating to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of the Company) money or to mortgaging, pledging or otherwise placing a Lien on any of its assets or its capital stock or any letter of credit arrangements;
(iv) all agreements relating to the licensing of Company Intellectual Property by the Company to a third party or by a third party to the Company (other than licenses of unmodified, off-the-shelf software that is not used in the Company’s products and has an aggregate purchase price of less than $25,000 and licenses of Company Intellectual Property to customers and end users entered into in the Ordinary Course of Business for the Company’s commercial Software products), or pertaining to any funding (including funding from any governmental authority) for any Company Intellectual Property;
(v) all nondisclosure or confidentiality agreements limiting the disclosure by the Company of material non-public information;
(vi) any guaranty of any obligation for borrowed money, contractual or otherwise, and any performance bonds;
(vii) all leases or agreements under which the Company is a Permitted Lienlessee of or holds or operates any personal property owned by any other party for which the rental exceeds $25,000 per annum;
(viii) on all leases or agreements under which the Company is lessor of or permits any portion of the assets of third party to hold or operate any property, real or personal, controlled by the Company;
(ix) any Contract all contracts or group of related contracts with the same party for the furnishing or receipt of services or the purchase or sale of products or other personal property under which the undelivered balance of such products and services has a selling price in excess of $25,000 per annum (other than licenses of unmodified, off-the-shelf software that is not used in the Company’s products and has an aggregate purchase price of less than $25,000 and licenses of Company has made advances Intellectual Property to customers and end users entered into in the Ordinary Course of Business for the Company’s commercial Software products);
(x) all contracts or loans to group of related contracts with the same party (and, in the case of any other Person customer contract, in excess of $25,000 per annum): (A) continuing over a period of more than six months from the date or dates thereof; or (B) not terminable by the Company upon sixty (60) days’ or less notice without penalty;
(xi) all contracts which shall not include advances made to an employee prohibit the Company from freely engaging in business anywhere in the world;
(xii) all contracts with third parties for the distribution, marketing, sale, advertising or promotion of the Company Company’s products or services (not including purchase orders for the sale of goods in an amount less than $25,000 and entered into in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
(xi) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to all franchise agreements, agency agreements or otherwise contains a provision relating to a “change powers of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreementattorney;
(xiv) any other Contract that (A) involves a future all agreements with respect to the lending or potential Liability or receivable, as the case may be, in excess investing of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled funds by the CompanyCompany in or to, as applicableor ownership by the Company of, without penalty or further payment other Persons (including investments in joint ventures and without more than thirty (30) days’ noticeminority equity investments);
(xv) Contracts under which all agreements with the Company is a licensor PSLC or otherwise grants any PSLC Researcher; and
(xvi) all other agreements material to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis the Company, whether or not entered into in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effect.
(b) Each of the Contracts set forth or With respect to each agreement required to be set forth listed on Section 3.12Schedule 5.13, the Company has made available to Buyer a correct and complete copy of each written agreement listed thereon (as amended to date). With respect to each such agreement: (i) the agreement is legal, valid, binding, enforceable, and in full force and effect, except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies; (ii) the Company is not in breach or default in any material respect, nor has the Company taken any action which with notice or lapse of time or both would constitute a breach or default in any material respect, or permit termination, modification, or acceleration, under the agreement; (iii) to the Company’s Knowledge, (A) no other party is in breach or default in any material respect, and (B) no event has occurred which with notice or lapse of time or both would constitute a breach or default in any material respect, or permit termination, modification, or acceleration, under the agreement; and (iv) the Company has not received written notice of any other party’s repudiation or intention to repudiate any provision of the agreement.
Appears in 1 contract
Contracts and Commitments. 3.13.1 Except as expressly contemplated by this Agreement, no Group Company is a party to or bound by any of the following written or oral Contracts (athe “Material Contracts”) other than the Material Contracts listed in Section 3.12 3.13.1 of the Company Disclosure Schedules sets forth a list of Schedule and the following Contracts to which the Company is a partyRestructuring Contracts:
(ia) any partnershipContract involving payment obligations (contingent or otherwise) in excess of, joint venture, RMB1,000,000 individually or similar Contract that involves in the sharing of profits or lossesaggregate per annum;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets of the Company, other than in the Ordinary Course of Business;
(viib) any Contract relating to the acquisition by the Company sale, issuance, grant, exercise, award, purchase, repurchase or redemption of any operating business Share Capital;
(c) any Contract requiring the consent of any party thereto upon a change in control of any Group Company, containing any provision which could result in a modification of any rights or obligations of any party thereunder upon a change in control of any Group Company or which would provide any party any remedy (including rescission or liquidated damages) in the event of a change in control of any Group Company;
(d) any Contract involving the lease, license, sale, use, disposition or acquisition of a material amount of assets or capital stock of any other Person, a material business (other than in the Ordinary Course Course) with a contract value in excess of BusinessRMB1 million;
(viiie) any agreement relating to Contract involving the incurrencewaiver, assumptioncompromise, surety or guarantee settlement of any Indebtedness material Legal Proceeding;
(excluding f) any agreement Contract involving the ownership or lease of, title to, use of, or any leasehold or other interest in any real property;
(g) any Contract under which such Group Company is obligated or will become obligated to guarantee lease payments make any severance payment or bonus compensation payment by reason of this Agreement or the consummation of the Companytransactions contemplated hereunder;
(h) any Contract under which such Group Company has advanced or loaned monies to mortgagingany other Person or otherwise agreed to advance, loan or invest any funds other than any disbursement in the Ordinary Course;
(i) any Contract for Indebtedness, pledging or otherwise placing of a Lien (other than a Permitted Lien) on any portion asset or group of the assets of the CompanyGroup or any material letter of credit arrangements;
(ixj) any Contract under which for the license of any Intellectual Property Rights of any Group Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company than in the Ordinary Course of Business)Course;
(xk) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which such Group Company has granted a power of attorney, agency or similar authority to a third party other than in the Company will have any material outstanding obligation after the date of this AgreementOrdinary Course;
(xil) any Contract prohibiting such Group Company from freely engaging in any business or competing anywhere in the world;
(m) any Contract involving the establishment, contribution to, or operation of a partnership, joint venture, franchise or involving a sharing of profits or losses, or any investment in, loan to or acquisition or sale of the securities, equity interests or assets of any Person;
(n) any Contract with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental AuthorityEntity;
(xiio) Contract involving any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;Affiliate Transactions; or
(xiiip) any Contract that requires a consent which contains restrictions with respect to payment of dividends or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future distribution in respect of its Share Capital, partnership interests or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectmembership interests.
(b) Each of the Contracts set forth or required to be set forth on Section 3.12]
Appears in 1 contract
Sources: Share Purchase and Subscription Agreement (Vipshop Holdings LTD)
Contracts and Commitments. (a) Section 3.12 Other than leases for the Facilities and as otherwise set forth in Schedule 1.04(f) and Schedule 3.05(a) of the Company Disclosure Schedules sets forth a list Schedule, none of the following Contracts Transferred Assets are subject to, and the Seller is not a party to which the Company is a partyor bound by:
(i) any partnershipagreement, joint venture, contract or similar Contract that involves commitment requiring the sharing expenditure or series of profits related expenditures of funds in excess of $10,000 in any fiscal year (other than purchase orders in the ordinary course of business for goods necessary for the Seller to complete then existing contracts or lossespurchase orders);
(ii) any Contract with agreement, contract or commitment requiring the payment for goods or services whether or not such goods or services are actually provided or the provision of goods or services at a Significant Customer price less than the Seller’s cost of producing or Significant Suppliersupplying such goods or providing such services;
(iii) any Labor Agreementloan or advance to, or investment in, any Person or any agreement, contract, commitment or understanding relating to the making of any such loan, advance or investment;
(iv) any employmentcontract, severanceagreement, incentive compensationindenture, retention, change note or other instrument relating to the borrowing of control, money or consulting Contract with any current director, officer, guarantee or employee requiring an annual payment other contingent liability in respect of cash compensation any indebtedness or obligation of any Person (excluding non-guaranteed sales commissions) in excess other than the endorsement of $100,000 (or, negotiable instruments for deposit or collection in the case ordinary course of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000business);
(v) any Contract with another Person concerning confidentiality management service, employment, consulting or non-competition materially limiting other similar type contract or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classificationagreement;
(vi) any Contract for agreement, contract or commitment that would limit the sale freedom of the Buyer or any affiliate thereof following the Closing Date to engage in any line of business, to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any of the assets of the Company, other than Transferred Assets or to compete with any Person or to engage in the Ordinary Course of Businessany business or activity in any geographic area;
(vii) any Contract relating agreement, lease, contract or commitment or series of related agreements, leases, contracts or commitments not entered into in the ordinary course of business or, except for agreements to purchase or sell goods and services entered into in the ordinary course of business of the Seller, not cancelable by the Seller without penalty to the acquisition by the Company of any operating business or the assets or capital stock of any other Person, other than in the Ordinary Course of BusinessSeller within 30 calendar days;
(viii) other than in respect of the Seller’s customary general warranty for goods sold as described on Schedule 3.13(a) to the Disclosure Schedule, any agreement relating to or contract obligating the incurrence, assumption, surety Seller or guarantee of that would obligate or require any Indebtedness (excluding any agreement to guarantee lease payments subsequent owner of the Company) Business or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the CompanyTransferred Assets to provide for indemnification or contribution with respect to any matter;
(ix) any Contract under which sales, distributorship or similar agreement relating to the Company has made advances products sold or loans to any other Person (which shall not include advances made to an employee of services provided by the Company in the Ordinary Course of Business)Seller;
(x) any Contract relating to the settlementlicense, conciliation royalty or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreementagreement;
(xi) any Contract with contract requiring performance by Seller for a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change period of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is or requiring Seller to purchase or sell a licensor stated portion of its requirements or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectoutputs.
(b) Each To Seller’s knowledge, Seller is not in breach of any provision of, or is in default (or knows of any event or circumstance that with notice, or lapse of time or both, would constitute an event of default) under the terms of any of the Contracts set forth and Other Agreements that constitute a part of the Transferred Assets. All of the Contracts and Other Agreements that constitute a part of the Transferred Assets are
(c) in full force and effect. To Seller's knowledge, there are no pending or required threatened disputes with respect to any of the Contracts and Other Agreements.
(d) Except as shown on Schedule 3.05(a) and Schedule 1.04(f), the enforceability of the Contracts and Other Agreements that constitute a part of the Transferred Assets will not be set forth on Section 3.12affected in any manner by the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby and none of the Contracts and Other Agreements that constitute a part of the Transferred Assets require the receipt of the consent or waiver of any Person or Governmental Entity prior to the sale, assignment, transfer, conveyance or delivery thereof pursuant to this Agreement.
Appears in 1 contract
Contracts and Commitments. (a) Except as set forth in Section 3.12 2.5(a) of the Company Disclosure Schedules sets forth a list of the following Contracts to which Schedule, the Company is not a party:
party to nor is it bound by: (i) any partnershipagreement, joint venture, contract or similar Contract that involves commitment requiring the sharing expenditure or series of profits or losses;
related expenditures of funds in excess of $150,000 (other than purchase orders in the ordinary course of business for materials necessary for the Company's operations); (ii) any Contract with take-or-pay or similar agreement, contract or commitment requiring the Company to pay for goods or services whether such goods or services are actually provided or any agreement, contract or commitment requiring the Company to provide goods or services at a Significant Customer price less than cost to the Company of producing such goods or Significant Supplier;
providing such services; (iii) any Labor Agreement;
loan or advance to, or investment in, any Person or any agreement, contract, commitment or understanding relating to the making of any such loan, advance or investment; (iv) any employmentagreement with or obligation to Tulsa, severanceHoldings, incentive compensation, retention, change any of control, the Shareholders or consulting Contract with any current director, officer, or employee requiring an annual payment other Affiliate of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
Company; (v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
Debt Obligations; (vi) any Contract for labor union, management service, employment, consulting or other similar type of contract or agreement; (vii) any agreement, contract or commitment that would limit the sale freedom of the Acquiror or any Affiliate thereof following the Closing Date to engage in any line of business, to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any of the assets of the Company, other than Company or to compete with any Person or to engage in the Ordinary Course of Business;
(vii) any Contract relating to the acquisition by the Company of any operating business or the assets or capital stock of activity in any other Person, other than in the Ordinary Course of Business;
geographic area; (viii) any agreement, lease, contract or commitment or series of related agreements, leases, contracts or commitments not entered into in the ordinary course of business or, except for agreements to purchase or sell goods and services entered into in the ordinary course of business of the Company, not cancelable by the Company, without penalty to the Company, within 30 calendar days; (ix) any agreement or contract obligating the Company or that would obligate or require any subsequent owner of the Company to provide for indemnification or contribution with respect to any matter (other than agreements or contracts entered into in the ordinary course of business for the sale of goods or services); (x) any sales, distributorship, agency or similar agreement relating to the incurrence, assumption, surety products sold or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of services provided by the Company) or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company;
(ix) any Contract under which the Company has made advances or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business);
(x) any Contract relating to the settlement, conciliation or similar agreement with any Governmental Authority of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreement;
; (xi) any Contract with a Governmental Authority license, royalty or pursuant to which the Company participates in any program involving a Governmental Authority;
similar agreement; or (xii) any Contract pursuant other agreement, contract or commitment that is material to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction contemplated by this Agreement;
(xiv) any other Contract that (A) involves a future or potential Liability or receivable, as the case may be, in excess of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which the Company is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse Effectits business.
(b) Each Except as set forth in Section 2.5(b) of the Contracts Disclosure Schedule, the Company is not in breach of any provision of, or in default (and neither Tulsa nor Holdings have any knowledge of any event or circumstance that with notice, or lapse of time or both, would constitute an event of default) under, the terms of any of the contracts or agreements listed in Section 2.5(a) of the Disclosure Schedule. Except as set forth or required to be in Section 2.5(b) of the Disclosure Schedule, all of the contracts and agreements listed in Section 2.5(a) of the Disclosure Schedule are in full force and effect. Except as set forth in Section 2.5(b) of the Disclosure Schedule, neither Tulsa nor Holdings is aware of any pending or threatened disputes with respect to any of the contracts or agreements listed on Section 3.122.5(a) of the Disclosure Schedule.
(c) The enforceability of the contracts and agreements set forth in Section 2.5(a) of the Disclosure Schedule will not be affected in any manner by the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.
Appears in 1 contract
Sources: Acquisition Agreement (Weatherford International Inc /New/)
Contracts and Commitments. (a) Section 3.12 of the Company Disclosure Schedules sets forth Schedule 7.10 contains a complete and ------------------------- accurate list of the following Contracts to which the Company is a party:
(i) any partnershipeach Contract which is material to the businesses, joint ventureoperations, assets, condition (financial or similar Contract that involves the sharing of profits otherwise) or losses;
(ii) any Contract with a Significant Customer or Significant Supplier;
(iii) any Labor Agreement;
(iv) any employment, severance, incentive compensation, retention, change of control, or consulting Contract with any current director, officer, or employee requiring an annual payment of cash compensation (excluding non-guaranteed sales commissions) in excess of $100,000 (or, in the case of a severance, incentive compensation, retention or change of control agreement, an aggregate payment in excess of $100,000);
(v) any Contract with another Person concerning confidentiality or non-competition materially limiting or restricting the ability of the Company to enter into or engage in any market or line of business or otherwise including provisions on joint price-fixing, “most favored nation”, market or customer sharing, exclusivity or market classification;
(vi) any Contract for the sale of any of the assets prospects of the Company, and (ii) without regard to materiality, each of the following Contracts:
(a) any mortgage, indenture, note, installment obligation or other instrument, agreement or arrangement for or relating to any borrowing of money by the Company;
(b) any guaranty or other contract of suretyship, direct or indirect, by the Company of any obligation for borrowings or otherwise;
(c) any Contract made other than in the Ordinary Course ordinary course of Businessits business or providing for the grant of any preferential rights to purchase or lease any of its assets;
(viid) any Contract contracts or options (together with all documents delivered in connection therewith) relating to the acquisition by the Company after the date hereof of any operating business or parcel of real estate, and any obligation to make payments of any kind, contingent or otherwise, arising out of, or in connection with, any prior acquisition of the business, assets or capital stock of any other Person, other than in the Ordinary Course of Businesscompanies;
(viiie) any collective bargaining agreement relating with any labor union;
(f) any Contract calling for an aggregate purchase price or payments (to the incurrence, assumption, surety or guarantee of any Indebtedness (excluding any agreement to guarantee lease payments of from the Company) in any one year of more than $15,000 in any one case (or in the aggregate in the case of any related series of Contracts or other commitments);
(g) any Contract to mortgaging, pledging which any Insider is a party;
(h) any Contract with a term in excess of one year and providing for aggregate remaining payments in excess of $15,000;
(i) any Contract (including any decrees or otherwise placing a Lien (judgments) containing noncompetition or other than a Permitted Lien) on any portion limitations restricting the conduct of the assets business of the Company or any officers of the Company;
(ixj) any Contract under which the Company has made advances involving representation or loans to any other Person (which shall not include advances made to an employee of the Company in the Ordinary Course of Business)distribution rights, franchises, licenses, agencies or similar rights;
(xk) any Contract relating to providing for the settlement, conciliation purchase of all or similar agreement with any Governmental Authority substantially all of any claim or action or pursuant to which the Company will have any material outstanding obligation after the date of this Agreementits requirements for a particular product from a supplier;
(xil) any Contract which requires the consent of any third party in connection with a Governmental Authority or pursuant to which the Company participates in any program involving a Governmental Authority;
(xii) any Contract pursuant to which the Company is granted a lease in, a sublease in, or the right to use or occupy any Leased Real Property facility;
(xiii) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control,” or that would give rise to any acceleration or additional rights or obligations under such Contract or prohibit or delay the consummation of the transaction transactions contemplated by this Agreement;
(xivm) any partnership, joint venture or similar agreement; and
(n) any Contract involving the leasing of any real or personal property. True and complete copies of all written Contracts have heretofore been delivered to Buyer, and the Company has provided Buyer with accurate and complete written summaries of all such Contracts which are unwritten. Neither the Company nor any other party thereto is in breach of or default under any Contract, and no event has occurred which (after notice or lapse of time or both) would become a breach or default under, or would permit modification, cancellation, acceleration or termination of, any Contract that (A) involves a future or potential Liability result in the creation of any security interest, lien, encumbrance or receivableclaim upon, as the case may beor any person obtaining any right to acquire, in excess any properties, assets or rights of $50,000 on an annual basis or in excess of $250,000 over the current Contract term or (B) has a term greater than one year and cannot be cancelled by the Company, as applicable, without penalty or further payment and without more than thirty (30) days’ notice;
(xv) Contracts under which . There are no unresolved disputes involving the Company is a licensor or otherwise grants to a third party under any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the Ordinary Course of Business);
(xvi) any other agreement (not described in clauses (i) to (xvii) above) the termination of which would reasonably be expected to have a Company Material Adverse EffectContract.
(b) Each of the Contracts set forth or required to be set forth on Section 3.12
Appears in 1 contract