Contracts and Commitments. (a) Section 3.16 of the Disclosure Schedule lists the following agreements, whether oral or written, to which the Company is a party and which are currently in effect: (i) collective bargaining agreement or contract with any labor union; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder); (iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder); (iv) stock purchase or stock option plan; (v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person; (vi) confidentiality agreement; (vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company; (viii) guaranty by it of any obligation for borrowed money or otherwise; (ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule; (x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule; (xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices); (xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices); (xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000; (xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company; (xv) contract which prohibits the Company from freely engaging in business anywhere in the world; (xvi) franchise agreement; (xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule; (xviii) contract or commitment for capital expenditures in excess of $10,000; (xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000; (xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms); (xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations; (xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or (xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practices.
Appears in 1 contract
Contracts and Commitments. (i) Except as expressly contemplated by this Agreement or as set forth on the attached "Contracts Schedule" or the attached "Employee Benefits Schedule," the Company is not a party to or bound by any written or oral:
(a) Section 3.16 of the Disclosure Schedule lists the following agreementspension, whether oral profit sharing, stock option, employee stock purchase or writtenother plan or arrangement providing for deferred or other compensation to employees or any other employee benefit plan or arrangement, to which the Company is a party and which are currently in effect:
(i) or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(iib) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) written contract for the employment of any officer, individual employee or other person Person on a full-time time, part-time, consulting or consulting other basis or contract relating to severance pay for any such personloans to officers, directors or Affiliates;
(vic) confidentiality agreementcontract under which the Company has advanced or loaned any other Person amounts in the aggregate exceeding $25,000;
(viid) agreement or indenture relating to the borrowing of borrowed money or to other Indebtedness or the mortgaging, pledging or otherwise placing a lien Lien on any material asset or material group of the assets of the Company;
(viiie) guaranty by it guarantee of any obligation for borrowed money or otherwisein excess of $5,000;
(ixf) lease or agreement under which it the Company is lessee of, of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental exceeds payments do not exceed $3,000, other than as described in Section 3.12 of the Disclosure Schedule20,000;
(xg) lease or agreement under which it the Company is lessor of, of or permits any third party to hold or operate, operate any property, real or personal, for which owned or controlled by the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure ScheduleCompany;
(xih) contract or group of related contracts with the same party for or group of affiliated parties the purchase performance of products or services under which the undelivered balance of such products or services is involves consideration in excess of $1,000 30,000;
(other than purchase orders entered into i) assignment, license, indemnification or agreement with respect to any intangible property (including, without limitation, any Intellectual Property);
(j) warranty agreement with respect to its services rendered or its products sold or leased except in the ordinary course of business consistent with past practicesbusiness;
(k) agreement under which it has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(xiil) contract sales, distribution or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices)franchise agreement;
(xiiim) contract or group of related contracts agreement with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period term of more than six months from the date or dates thereof, which is not terminable by it on the Company or any Subsidiary upon less than 30 (thirty) days' or less days notice without penalty and involving more than $5,000penalty;
(xivn) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company agreement prohibiting it from freely engaging in any business or competing anywhere in the world;; or
(xvio) franchise agreement;
(xvii) license any other agreement which is material to its operations and business prospects or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures involves a consideration in excess of $10,000;100,000 annually.
(xixii) agreement for All of the sale contracts, agreements and instruments set forth on the Contracts Schedule are valid, binding and enforceable in accordance with their respective terms. The Company has performed all material obligations required to be performed by it and is not in default under or in breach of nor in receipt of any capital asset not in the ordinary course claim of business default or exceeding $10,000;
(xx) contract with breach under any affiliate contract, agreement or instrument to which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under is subject; no event has occurred which with the passage of time or the giving of notice or both would result in a change in control material default, breach or event of noncompliance by the Company terminates under any contract, agreement or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement instrument to which is either material to the business of the Company is subject; the Company does not have any present expectation or intention of not fully performing all such obligations; the transactions contemplated hereby Company does not have knowledge of any breach or anticipated breach by the other parties to any contract, agreement, instrument or commitment to which was it is a party; and the Company is not entered into in the ordinary course of business consistent with past practicesa party to any materially adverse contract or commitment.
Appears in 1 contract
Contracts and Commitments. (ai) Section 3.16 of Except as expressly contemplated by this Agreement or as set forth on the Disclosure Schedule lists the following agreements, whether oral or written, to which attached "Contracts Schedule," neither the Company nor any ------------------ Subsidiary is a party and to or bound by any material written or oral contract or agreement, except for those contracts or agreements which are currently in effect:
(i) collective bargaining agreement can be terminated by the Company on no more than 30 days notice without penalty or contract with any labor union;further expense.
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 All of the Disclosure contracts, agreements and instruments set forth on the Contracts Schedule (are valid, binding and enforceable in accordance ------------------ with their respective terms. The Company and each Subsidiary have performed all material obligations required to be performed by them and are not in default under or excluded in breach of nor in receipt of any claim of default or breach under any contract, agreement or instrument identified on the Contracts Schedule. No event has occurred which with the passage of time or ------------------ the giving of notice or both would result in a default, breach or event of noncompliance by Section 3.21 from inclusion thereunder);the Company or any Subsidiary under any material contract; neither the Company nor any Subsidiary has any present expectation or intention of not fully performing all such obligations; neither the Company nor any Subsidiary has knowledge of any breach or anticipated breach by the other parties to any contract; and neither the Company nor any Subsidiary is a party to any materially adverse contract or commitment.
(iii) hospitalization insurance The Purchasers' special counsel have been supplied with a true and correct copy of each of the written instruments, plans, contracts and agreements and an accurate description of each of the oral arrangements, contracts and agreements which are referred to on the Contracts Schedule, together with all amendments, waivers or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);changes ------------------ thereto.
(iv) stock purchase or stock option plan;
(v) contract for All agreements between the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on Company and any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money Purchasers or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution their respective Affiliates in respect of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into any other aspect of the Company's affairs are set forth in this Agreement or in the ordinary course of business consistent with past practices.Contracts Schedule. ------------------
Appears in 1 contract
Contracts and Commitments. (ai) Section 3.16 4.1(n)(i) of the Disclosure Schedule lists sets forth an accurate and complete list of each of the following agreements, whether oral or written, written Contracts to which the Company Seller is a party and or by which its assets are currently in effect:bound (collectively, “Material Contracts”):
(iA) collective bargaining agreement or contract with any labor unionReal Property Lease;
(iiB) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule any Contract (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party Contracts) for the purchase lease or license of products personal property (including Intellectual Property) to or services under which the undelivered balance from any Person;
(C) agreements or series of such products related agreements with customers or services is distributors involving aggregate payments to Seller in excess of $1,000 50,000 in any twelve (other than purchase orders entered into in the ordinary course of business consistent with past practices)12)-month period;
(xiiD) contract any Contract (or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiiiContracts) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of raw materials, commodities, supplies, products or servicesother personal property (including Intellectual Property) continuing over a period or for the furnishing or receipt of more than six months from the date or dates thereof, not terminable services involving aggregate payments by it on 30 Seller in excess of $50,000 in any twelve (thirty) days' or less notice without penalty and involving more than $5,00012)-month period;
(xivE) contract any Contract concerning a partnership or joint venture;
(F) any Contract (or group of related contracts with the same party calling for Contracts) under which Seller has created, incurred, assumed or guaranteed any rebatesIndebtedness, allowancesor under which Seller has imposed or become subject to any Encumbrance on any of its assets, discounts, performance money tangible or compensation of any type previously paid or granted or to be paid or granted to or by the Companyintangible;
(xvG) contract which prohibits the Company from freely engaging in business anywhere in the worldany Contract concerning non-disclosure, confidentiality, non-competition or non-solicitation;
(xviH) franchise any Contract between Seller and any of Seller’s other Affiliates;
(I) any profit sharing, equity option, equity purchase, equity appreciation, deferred compensation, severance, change of control or other material plan or arrangement for the benefit of the current or former officers, directors, managers, employees or independent contractors of Seller;
(J) any collective bargaining agreement;
(xviiK) license agreement or agreement providing any Contract for the payment or receipt employment of royalties any individual on a full-time, part-time, consulting, or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedulebasis or that provides for severance benefits;
(xviiiL) contract any Contract under which Seller has advanced or commitment for capital expenditures loaned any amount to Seller’s officers, directors, managers or employees;
(M) any Contract under which Seller has made any advance or loan to any other Person;
(N) any settlement, conciliation, or similar Contract;
(O) any agreement that (i) limits the freedom of Seller to compete in any line of business or with any Person or in any area (including any agreement that contains any non-competition or non-solicitation provision) or that would so limit the freedom of Purchaser or its Affiliates after the Closing, (ii) contains exclusivity obligations or restrictions binding on Seller or that would be binding on Purchaser or any of its Affiliates after the Closing or (iii) contains most favored nations provisions binding on the Business; and
(P) Contract, not otherwise identified above, pursuant to which Seller is obligated as of the Closing Date to make payments in excess of $10,000;25,000 during the 12-month period following the Closing Date.
(xixii) agreement for Seller has delivered to Purchaser a true, complete and correct copy of each Material Contract and a written summary setting forth the sale material terms and conditions of each oral Material Contract. With respect to each such Contract: (A) such Contract is legal, valid, binding, enforceable and in full force and effect; (B) Seller is not, and to Seller’s Knowledge, no other party is in breach or default, and no event has occurred that with notice or lapse of time or both would constitute a breach or default or permit termination, modification or acceleration under such Contract; and (C) no party has repudiated any capital asset not in the ordinary course provision of business such Contract or exceeding $10,000;
(xx) contract with any affiliate which in any way relates threatened to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicesterminate such Contract.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Contracts and Commitments. Sellers have delivered to Buyer true copies of all written, and disclosed to Buyer all oral, contracts and leases of Seller entered into in connection with or related to the Assets or the Business, all of which are listed on Schedule 5.19. Except as set forth on Schedule 5.19:
(a) Section 3.16 the legal enforceability after the Closing of the Disclosure rights of each Selling Party under any of its contracts will not be affected in any manner by the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby;
(b) each Selling Party has no sales or purchase commitments which are in excess of the normal, ordinary and usual capacity or requirements of its business;
(c) except as described on Schedule lists the following agreements, whether oral or written, to which the Company 5.19. no Selling Party is a party and which are currently in effect:
to or bound by (i) collective bargaining any outstanding contracts with officers, employees, agents, consultants, advisors, salesmen, or sales representatives, that are not cancelable by such Selling Party on notice of not longer than thirty (30) days and without liability, penalty or premium, (ii) any agreement or contract with arrangement providing for the payment of any labor unionbonus or commission based on sales or earnings, or (iii) any agreements that contain any severance or termination pay, liabilities or obligations;
(iid) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than no Selling Party is a party to any licensing agreement as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder)licensee;
(iiie) hospitalization insurance no Selling Party is restricted or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded purported to be restricted by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien from carrying on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in its business anywhere in the world;
(xvif) franchise agreementno officer, director, agent, employee, consultant, or contractor of a Selling Party is bound by any contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (i) engage in or continue any conduct, activity, or practice relating to the Business, or (ii) assign to any person or entity any rights to any invention, improvement or discovery;
(xviig) license agreement each contract identified or agreement providing for the payment required to be identified on Schedule 5.19 is in full force and effect and is valid and enforceable in accordance with its terms and no default or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedulealleged default exists;
(xviiih) contract no Selling Party nor any Owner has received notice of the intention of any such party to cancel, terminate or commitment for capital expenditures in excess of $10,000;amend any such contracts and has no reason to believe any such action is contemplated by any party to any such contract; and
(xixi) agreement there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any party under any contract identified or required to be identified on Schedule 5.19 and no party has made any demand for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicessuch renegotiation.
Appears in 1 contract
Sources: Asset and Equity Purchase Agreement (AAC Holdings, Inc.)
Contracts and Commitments. (a) Section 3.16 Schedule 5.10 contains a true, complete and correct list of the Disclosure Schedule lists following written contracts and agreements (the following "ECP Material Contracts"):
(i) all contracts, agreements, whether oral commitments, purchase orders or written, other understandings or arrangements to which the Company ECP is a party or by which ECP or any of its properties is bound which involve payments or receipts by ECP of more than US$5,000 in the case of any single contract, agreement, commitment, understanding or arrangement under which full performance (including payment) has not been rendered by all parties thereto;
(ii) all collective bargaining agreements, employment and consulting agreements, executive compensation plans, bonus plans, deferred compensation agreements, pension plans, retirement plans, employee stock option or stock purchase plans and group life, health and accident insurance and other employee benefit plans, agreements, arrangements or commitments to which are currently in effectECP is a party or by which ECP or any of its properties is bound; and
(iii) all material leases, whether operating, capital or otherwise, under which ECP is lessor or lessee.
(b) ECP has no other material agreements and commitments, including, to the extent material, but not limited to:
(i) collective bargaining agreement pledges, conditional sale or contract with title retention agreements, security agreements, equipment obligations, and lease agreements relating to any labor unionof ECP's assets to which ECP is a party or by which ECP is bound;
(ii) bonuscontracts, pensionagreements, profit sharingcommitments, retirement purchase orders or other form understandings or arrangements involving payment by ECP of deferred compensation planUS$5,000 or more and relating to ECP's business or assets to which ECP is a party or by which ECP is bound under which full performance (including payment) has not been rendered by all parties thereto, other than as described in Section 3.21 or which may materially adversely affect the financial condition of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder)its business;
(iii) hospitalization insurance distribution agreements, agency agreements, franchises or other welfare benefit plan similar agreements to which ECP is a party or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder)which they are bound affecting its business;
(iv) stock purchase contracts under which full performance (including payment) has not been rendered by ECP with any stockholder, current or stock option planformer director, any lessor connected with a stockholder or current or former director, employee, consultant, agent, representative or security holder, including any employment, consulting or deferred compensation agreement and any executive compensation, bonus or incentive plan agreement;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase purchase, sale, lease of materials, supplies, equipment or sale capital assets, or the receipt of products or servicesservices by ECP, (i) continuing the performance of which will extend over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty one year and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures involve consideration in excess of $10,000;
US$5,000 (xixexcluding contracts that may be terminated without penalty on notice of 90 days or less), or (ii) agreement for the sale involve consideration in excess of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts)US$5,000; or
(xxiiivi) other agreement which contracts of guarantee and indemnification.
(c) Except as disclosed on Schedule 5.10, ECP is either not in default in any material respect under any ECP Material Contract, and no event has occurred which, after notice or lapse of time, or both, would constitute such a default, result in a loss of material rights or result in the creation of any material lien, charge or encumbrance, under any such contract, and to the business Knowledge of the Company Seller, (x) there is no existing material default by any other party to any such contract, and (y) no event has occurred which after notice or the transactions contemplated hereby lapse of time, or which was not entered into both, would constitute a material default by such other party, result in a loss of material rights or result in the ordinary course creation of business consistent with past practicesany material lien, charge or encumbrance, under any such contract.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.16 Schedule 4.9 sets forth a true, complete and correct list and description of the Disclosure Schedule lists the following agreements, whether oral or written, relating to which the Company UPI Business, to which, as of the Closing Date, the Seller is a party and or by which are currently in effect:
the Seller is bound (i) collective bargaining agreement or contract with any labor union;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 any such agreement that relates solely to an Excluded Asset): (a) all commitments, contracts, agreements, notes, loans, mortgages, indentures, pledges and other instruments involving an obligation on the part of the Disclosure Schedule Seller of more than $10,000 individually or more than $25,000 in the aggregate, (b) all purchase orders and all agreements pursuant to which other Persons provide goods or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating services to the borrowing of money or to mortgagingSeller, pledging or otherwise placing a lien on any of the assets of the Company;
(viiic) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts all agreements with the same party for the purchase of products or services Clients under which the undelivered balance of such products Seller may be obligated to perform services or services is expects to receive fees or other compensation, (d) all personal property leases involving annual payments in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract 5,000 individually or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
25,000 in the aggregate, (xive) contract or group of related all employment contracts with employees of the same party calling for any rebatesSeller and all independent contractor agreements, allowances, discounts, performance money or compensation (f) all guarantees of the obligations of any type previously paid or granted or to be paid or granted to or by other Person, and (g) all other agreements (including, without limitation, all agreements restricting the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 ability of the Disclosure Schedule;
Seller or any other Person to compete or solicit clients) (xviiithe agreements identified in clauses (a) contract or commitment for capital expenditures in excess through (g) of $10,000;
(xix) agreement for this Section 4.9 being collectively referred to as the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates "UPI Related Contracts"). The Seller has delivered to the Company (other than for employment on customary terms);
(xxi) contract under which Buyer a change in control true, complete and correct copy of each Purchased Contract. The Seller has not assigned, delegated or otherwise transferred any of its rights or obligations with respect to any Purchased Contract or any Acquired Asset. The Purchased Contracts constitute all of the Company terminates or modifies any UPI Related Contracts of the Company's rights or obligations;
(xxii) contract for Seller which are necessary to conduct the distribution of UPI Business as it is being conducted on the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicesdate hereof.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.16 Schedule 2.12 contains a complete and accurate list of all contracts, agreements, commitments, instruments and obligations (whether written or oral, contingent or otherwise) of, or otherwise binding the Disclosure Schedule lists Assets and/or the business of, BPC concerning the following agreements, whether oral or written, to which matters (the Company is a party and which are currently in effect:"Seller Agreements"):
(i) collective bargaining agreement the lease, as lessee or contract with lessor, or license, as licensee or licensor, of any labor unionreal or personal property (tangible or intangible);
(ii) bonusthe employment or engagement of any officer, pensiondirector, profit sharingemployee, retirement consultant or other form of deferred compensation planagent, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder)those terminable at will without severance obligation, and any covenant not to compete with any former employees;
(iii) hospitalization insurance any relationship or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is arrangement that requires financial payments in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract 25,000.00, or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing performance over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiviv) contract any arrangement limiting the freedom of the Sellers or group BPC to compete in any manner in any line of related contracts with business or requiring the same party calling for any rebates, allowances, discounts, performance money Sellers or compensation of any type previously paid or granted or BPC to be paid or granted to or by the Companyshare profits;
(xvv) contract which prohibits the Company from freely engaging in any arrangement that could reasonably be anticipated to have a material adverse effect on BPC's condition (financial or otherwise), Assets, Liabilities, business anywhere in the worldor operations;
(xvivi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset material arrangement not in the ordinary course of business or exceeding $10,000business;
(xxvii) contract any power of attorney, whether limited or general, granted by BPC; and
(viii) any arrangement with customers, patients, managed care organizations, third party payors, pharmacy benefit managers or drug suppliers.
(b) The Sellers have delivered to Buyer true and complete copies of all of the Seller Agreements. Except as indicated on Schedule 2.12, the Seller Agreements are valid and binding in accordance with their terms, and there is not under any affiliate which in of such Seller Agreements (i) any way relates existing or claimed default by BPC or event which, with the notice or lapse of time, or both, would constitute a material default by BPC, or (ii) to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control Knowledge of the Company terminates Sellers, any existing or modifies claimed default by any other party or event which with notice or lapse of time, or both, would constitute a material default by any such party. There is no actual or, to the Knowledge of the CompanySellers, threatened termination, cancellation or limitation of any Seller Agreements that would have a material adverse effect on BPC's rights condition (financial or obligations;
(xxii) contract for otherwise), Assets, Liabilities, business or operations. To the distribution Knowledge of the Company's products (including Sellers, there is no pending or threatened bankruptcy, insolvency or similar proceeding with respect to any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material party to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicesSeller Agreements.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.16 As of the Disclosure Schedule lists the following agreementsdate hereof, whether oral none of Olsten or written, to which the Company any of its Subsidiaries is a party to any existing contract, obligation or commitment of any type in any of the following categories except for contracts filed as exhibits to the Olsten SEC Reports or set forth in Section 4.20 of the Olsten Disclosure Statement (true and complete copies of which are currently in effect:contracts have been delivered to or made available to Adecco):
(i) collective bargaining agreement contracts that provide for annual payments to or contract with by Olsten or any labor unionof its Subsidiaries aggregating in excess of $6,000,000;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) any contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) lease or agreement under which it is lessee ofOlsten or any Subsidiary has or may, or holds or operates any property, real or personal, owned except by any other party, way of endorsement of negotiable instruments for which the annual rental exceeds $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into collection in the ordinary course of business and consistent with past practices);
practice, become absolutely or contingently or otherwise liable for (xiix) the performance under a contract of any other person, firm or group corporation or (y) the whole or any part of related contracts with the same party for the sale indebtedness or liabilities of products any other person, firm or services under which the undelivered balance of such products or services has a sales price corporation, in all cases, individually in excess of $2,000 (other than purchase orders entered into 1,000,000 and in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures aggregate in excess of $10,0005,000,000;
(xixiii) agreement for the sale employment agreements, consulting agreements, contracts or commitments with any employee or member of Olsten's Board of Directors, other than those which are terminable by Olsten or any capital asset of its Subsidiaries on not more than thirty days notice without liability or financial obligation, and within each such category of agreements, contracts or commitments, which are individually in the ordinary course excess of business or exceeding $10,000150,000;
(xxiv) any agreements or plans, including, without limitation, any stock option, stock appreciation right or stock purchase plans or agreements, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(v) any contract with any affiliate which in any way relates to the Company (director, officer or more than 5% stockholder of Olsten other than for employment on customary terms)in such person's capacity as a director or officer of Olsten or any contract with any entity in which, to Olsten's knowledge, any director, officer or more than 5% stockholder or any family member of any director, officer or stockholder has a material economic interest;
(xxivi) any contract under which a that limits or restricts in any material respect where Olsten or any of its Subsidiaries may conduct its or their business or the type or line of business that Olsten or any of its Subsidiaries may engage in; and
(vii) any material contract containing any agreement with respect to any change in control of control.
(b) All of the Company terminates or modifies any contracts listed in Section 4.20 of the CompanyOlsten Disclosure Statement are in full force and effect, except for those contracts the ineffectiveness of which would not reasonably be expected to have an Olsten Material Adverse Effect. None of Olsten or its Subsidiaries is in breach of or default under any contract to which it is a party, except for breaches or defaults that would not, individually or in the aggregate, either impair Olsten's rights or obligations;
OHS' (xxiias applicable) contract for ability to consummate the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company Merger or the Split-Off or the other transactions contemplated hereby or which was not entered into in by the ordinary course of business consistent with past practicesSeparation Agreement or have an Olsten Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Olsten Corp)
Contracts and Commitments. Except as set forth in Schedule 3.12 of the TravCorps Disclosure Schedule:
(a) Section 3.16 Neither TravCorps nor any of the Disclosure Schedule lists the following its Subsidiaries has any agreements, whether oral contracts, or writtencommitments, to written or oral, which the Company is a party and which are currently in effect:
involve (i) collective bargaining agreement the performance of services by TravCorps or contract with any labor union;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is its Subsidiaries in excess of $1,000 150,000 anticipated for fiscal year 1999 or (other than purchase orders entered into in ii) the ordinary course performance of business consistent with past practices);
(xii) contract services or group delivery of related contracts with the same party for the sale of products goods to TravCorps or services under which the undelivered balance of such products or services has a sales price its Subsidiaries in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices)150,000 anticipated for fiscal year 1999;
(xiiib) contract Neither TravCorps nor any of its Subsidiaries has any collective bargaining or group of related union contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000agreements;
(xivc) contract Neither TravCorps nor any of its Subsidiaries is restricted by any agreement or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company other commitment from freely engaging in carrying on its business as currently conducted anywhere in the world;
(xvid) franchise agreementNeither TravCorps nor any of its Subsidiaries has any material obligations for Indebtedness;
(xviie) license Neither TravCorps nor any of its Subsidiaries is a party to any partnership or joint venture agreement whether or not a separate legal entity is created thereby or any contract or agreement providing for relating to the payment acquisition or receipt disposition of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 any portion of the Disclosure Scheduleits business;
(xviiif) Neither TravCorps nor any of its Subsidiaries is in material breach or default, under any contract referred to in Schedule 3.12, and there exists no event or condition (other than the entering into of this Agreement and the consummation of the transactions contemplated hereby) which (whether with or without notice, lapse of time, or both) would constitute a material default by TravCorps or any Subsidiary thereunder, give rise to a right to accelerate, modify or terminate any material provision thereof or give rise to any material Encumbrance on their respective material Properties or assets or a right to any material, additional or guaranteed payments; and to the knowledge of TravCorps or any of its Subsidiaries, no other party to any such contract or commitment for capital expenditures agreement is in excess of $10,000material breach or default thereof;
(xixg) each contract and agreement for the sale referred to in Schedule 3.12 and each contract and agreement relating to a TravCorps License Right is valid and in full force and effect and constitutes a legal, valid and binding obligation of TravCorps or any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates its Subsidiaries, and, to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control knowledge of the Company terminates TravCorps or modifies any of its Subsidiaries, the Company's rights other parties thereto, enforceable in accordance with its terms, accurate and complete copies thereof, together with all amendments thereto, have been heretofore delivered or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material made available to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicesCCS.
Appears in 1 contract
Sources: Merger Agreement (Cross Country Inc)
Contracts and Commitments. (a) Except as set forth in Section 3.16 5.9 of the Disclosure Schedule lists the following agreementsSchedule, whether oral or written, to which neither the Company nor any Subsidiary is a party and which are currently in effect:
to any: (i) collective bargaining agreement or contract with any labor union;
, (ii) bonus, pension, profit sharing, severance, change of control, retirement or other form of deferred compensation or similar agreement or plan, (iii) stock purchase, stock option or similar plan or agreement, other than as described set forth in Section 3.21 5.14 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practiceSchedule, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
basis, (vi) confidentiality agreement;
(viiv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets material portion of the Company;
's or any of the Subsidiaries' assets, (viiivi) guaranty by it of any obligation for borrowed money or otherwise;
other material guaranty, (ixvii) lease or agreement under which it is lessee of, or holds or operates operates, any property, real or personal, personal property owned by any other party, for which the annual rental exceeds $3,00050,000, other than as described in Section 3.12 of the Disclosure Schedule;
(xviii) lease or agreement under which it is lessor of, of or permits any third party to hold or operate, operate any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
50,000, (xiix) written contract or group of related written contracts (including, without limitation, supply and license agreements) with the same party or related parties for the purchase of products or services services, under which the undelivered balance of such products or and services is has a selling price in excess of $1,000 100,000, (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiix) written contract or group of related written contracts (including, without limitation, supply and license agreements) with the same party or related parties for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 100,000, (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xvxi) contract which prohibits the Company from freely engaging in business anywhere in the world;, (xii) written or oral contract with any officer, director or stockholder, or (xiii) any material collaboration or cooperation agreement.
(xvib) franchise agreement;Buyer either has been supplied with, or has been given access to, a true and correct copy of all written contracts which are referred to on the Disclosure Schedule, together with all written amendments thereto, and, to the Company's knowledge, accurate descriptions of all oral contracts and amendments referred to therein.
(xviic) license agreement or agreement providing for Each of the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights contracts listed in Section 3.17 5.9 of the Disclosure Schedule constitutes a valid and binding obligation of the Company or any Subsidiary a party thereto and, to the Company's knowledge, constitutes a valid and binding obligation of the other parties thereto. Neither the Company nor any Subsidiary is in default and, to the Company's knowledge, no other party thereto is in default under any contract listed in Section 5.9 of the Disclosure Schedule;, except where such default could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(xviiid) contract The Disclosure Schedule lists all third party consents to, or commitment for capital expenditures in excess approvals of, the execution, delivery or performance of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to this Agreement by the Company (required under any material indenture, mortgage, lease, loan agreement, or other than for employment on customary terms);
(xxi) contract under material agreement to which a change in control the Company or any Subsidiary of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicesa party.
Appears in 1 contract
Sources: Recapitalization and Stock Purchase Agreement (Packard Bioscience Co)
Contracts and Commitments. Except for those contracts listed on Schedule 3.14 (the “Material Contracts”), neither the Company nor any of its Subsidiaries is a party to:
(a) Section 3.16 of the Disclosure Schedule lists the following agreementsany material distributor, whether oral dealer, manufacturer’s representative or written, to which the Company is a party and which are currently in effect:sales agency agreement;
(b) any original equipment manufacturer agreement;
(c) any agreement with another Person (i) collective bargaining agreement materially limiting or contract restricting the ability of the Company or any Subsidiary to enter into or engage in any market, line of business or geographic area, (ii) requiring the Company or any of its Subsidiaries to deal on an exclusive basis with any labor unionPerson; or (iii) containing any provisions requiring the Company or any Subsidiary to offer any Person terms or concessions at least as favorable as offered to one or more parties;
(iid) bonusany agreement with any current officer, pensiondirector, profit sharing, retirement stockholder or other form of deferred compensation plan, other than as described in Section 3.21 Affiliate of the Disclosure Schedule (Company or excluded by Section 3.21 from inclusion thereunder)any of its Subsidiaries;
(iiie) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract any agreement for the employment of any officer, individual employee or other person on a fullfull time, part-time time, consulting or consulting other basis providing annual compensation in excess of $100,000 or relating to severance pay which cannot be terminated by the Company or any Subsidiary thereof on less than thirty (30) days’ notice without liability for any such personpenalty, payment or other obligation;
(vif) confidentiality agreementcollective bargaining agreement or other agreement with any trade union or employee organization in respect of or affecting employees;
(viig) any agreements for the sale of any of the properties, rights or assets of the Company or any of its Subsidiaries (other than inventory in the ordinary course of business for consideration in excess of $50,000);
(h) any agreement or indenture relating to the borrowing acquisition by the Company or any of money its Subsidiaries of any operating business or the assets or capital stock of any other Person with respect to mortgagingwhich the Company or any of its Subsidiaries has any continuing rights or obligations;
(i) any agreements relating to the incurrence, pledging assumption, surety or otherwise placing guarantee of any Indebtedness and any performance bonds or letters of credit, whether or not drawn or called;
(j) any agreement related to material Intellectual Property Assets;
(k) (i) any agreement the Company or any of its Subsidiaries has made payments under of more than $100,000 in the twelve (12) calendar months ended April 30, 2015 or (ii) any agreement which requires or contemplates payments by the Company or any of its Subsidiaries of more than $100,000 in the twelve (12) full calendar months after April 30, 2015;
(i) any agreement the Company or any of its Subsidiaries has received payments pursuant to, of more than $100,000 in the twelve (12) calendar months ended April 30, 2015, or (ii) any agreement which requires or contemplates payments to the Company or any of its Subsidiaries of more than $100,000 in the twelve (12) full calendar months after April 30, 2015;
(m) any deposit agreements, indentures, mortgages, pledge agreements, security agreements, deeds of trust, conditional sale agreements or other agreements granting a lien Lien (other than Permitted Liens) on any of the assets of the CompanyCompany or any of its Subsidiaries to any Person; or
(n) any joint venture, strategic alliance, partnership, limited partnership or other similar agreements;
(viiio) guaranty by it any agreement containing a right of any obligation for borrowed money first refusal, first offer or otherwisefirst negotiation or is a requirements contract;
(ixp) lease any agreement that relates to the issuance or agreement under which it is lessee ofownership of any securities, equity, ownership or voting interests, or holds securities convertible into or operates exchangeable for securities, equity, ownership or voting interests of the Company or any propertyof its Subsidiaries;
(q) any agreement or contract containing any “earn-out”, real contingent or personaldeferred purchase price or similar contingent payment obligation or any material indemnification obligations; and
(r) any agreement with any employee or other service provider of the Company or any of its Subsidiaries containing any retention, owned “change of control” or similar provision that may be triggered by the transactions contemplated by this Agreement or any other party, for which the annual rental exceeds $3,000agreement as to length of notice or severance payment required to terminate his or her employment, other than such arising from any applicable law from the employment of an employee without an agreement as described in Section 3.12 to notice or severance. Prior to the date of this Agreement, the Disclosure Schedule;
(x) lease or agreement under which it is lessor ofCompany has made available to the Buyer true, or permits any third party correct and complete copies of all Material Contracts; provided, however, that the Company has not disclosed to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders Buyer certain confidentiality agreements entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereofprospective bidders prior to May 12, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company 2015 in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for , which the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material Company will provide to the business Buyer on Closing and none of which contains any obligations of the Company or any of its Subsidiaries other than those contained in the Confidentiality Agreement. Each Material Contract 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, and to the Company’s knowledge, the other parties thereto, except as such enforceability may be limited by General Enforceability Exceptions. There exists no breach or default (or event which with or without the lapse of time or the giving of notice, or both would constitute a breach or default), under any Material Contract by the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has given any written or other notice that it intends to terminate a Material Contract, nor has any of the Company or any of its Subsidiaries received any written notice or, to the Company’s knowledge, other notice, that any other party to any Material Contract intends to terminate a Material Contract. The consummation of the transactions contemplated hereby hereunder will not cause (A) any Material Contract to cease to be in full force and effect, (B) the breach of any terms or which was not entered into conditions of any Material Contract, (C) the forfeiture or impairment of any material rights under any Material Contract or (D) any penalty or other adverse consequence under any Material Contract, in any of the foregoing clauses (B) through (D) that, individually or in the ordinary course aggregate, would be material to the Company or would interfere in any respect with the conduct of business consistent with past practicesthe Business.
Appears in 1 contract
Sources: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Contracts and Commitments. Schedule 2.11 contains a true, complete and ------------------------- accurate list of all contracts, agreements, instruments, leases, licenses, arrangements and understandings (whether written or oral) to which ADI, any Subsidiary, Montvale GP or any LP is a party or by which any of its assets or properties are bound (i) the remaining payments under which equal or exceed $50,000, or (ii) which are otherwise material to the business or operations of ADI, any Subsidiary or any LP (collectively, the "Material Contracts"). ADI has ------------------ furnished to the Purchaser (i) true and complete copies of all written Material Contracts, and (ii) true and complete written descriptions of all supply, distribution, agency financing, or other arrangements or understandings referred to in Schedule 2.11 to the extent such Material Contracts have not been fully reduced to writing. All Material Contracts are valid and in full force and effect. Except as set forth in such Schedule 2.11:
(a) Section 3.16 of the Disclosure Schedule lists the following agreements, whether oral or written, to which the Company is a party and which are currently in effect:
(i) collective bargaining agreement or contract with any labor union;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operateneither ADI, any propertySubsidiary, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related Montvale GP nor any LP has any outstanding contracts with the same party for the purchase of products officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, dealers that are not terminable cancelable by it on notice of not longer than 30 (thirty) days' days and without liability, penalty or less notice without penalty and involving more than $5,000;
(xiv) contract premium or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement arrangement providing for the payment of any bonus or receipt of royalties commission based on sales or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Scheduleearnings;
(xviiib) contract neither ADI, any Subsidiary, Montvale GP nor any LP has any employment agreement, or commitment for capital expenditures in excess of $10,000;
(xix) any other agreement for the sale of that contains any capital asset not in the ordinary course of business severance or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights termination pay liabilities or obligations;
(xxiic) contract for the distribution of the Company's products (including neither ADI, any distributorSubsidiary, sales and original equipment manufacturer contracts); orMontvale GP nor any LP has any collective bargaining or union contracts or agreements;
(xxiiid) other agreement which neither ADI, any Subsidiary, Montvale GP nor any LP is either material in default, nor, to the business their knowledge, is there any basis for any valid claim of the Company default, under any Material Contract; (e) neither ADI, any Subsidiary, Montvale GP nor any LP has any indebtedness for borrowed money, including guarantees of or the transactions contemplated hereby or which was not entered into in the ordinary course agreements to acquire any such indebtedness of business consistent with past practices.others;
Appears in 1 contract
Sources: Stock Purchase Agreement (Medical Resources Inc /De/)
Contracts and Commitments. Except as specifically identified in the IM Disclosure Schedule:
(a) Section 3.16 No purchase contracts or commitments of the Disclosure Schedule lists the following agreements, whether oral or written, to which the Company is a party and which are currently in effect:
(i) collective bargaining agreement or contract with any labor union;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract Arcus continue for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six 12 months from or are in excess of an arm's-length negotiated price;
(b) There are no outstanding sales contracts, commitments or proposals of Arcus which continue for a period of more than 12 months and, to the date Knowledge of IM, will result in any Loss to Arcus upon completion or dates performance thereof;
(c) Arcus does not have any outstanding contracts with agents, consultants, advisors, distributors or dealers (in each case whose annual basic compensation is in excess of (pound)35,000) that are not terminable cancellable by it on 30 (thirty) days' notice of not longer than 90 days and without liability, penalty or less notice without penalty and involving more than $5,000premium, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(xivd) contract Arcus does not have any employment agreement, or group any other agreement with any Person (in each case whose annual compensation is in excess of related contracts with the same party calling for (pound)35,000) that contains any rebates, allowances, discounts, performance money severance or compensation of any type previously paid termination pay liabilities or granted or to be paid or granted to or by the Companyobligations;
(xve) contract Arcus is not in default under or in violation of, nor is there any valid basis for any claim of default under or violation of, any contract, commitment or restriction to which prohibits the Company it is a party or by which it is bound;
(f) Arcus is not party to any agreement restricting it from freely engaging in carrying on its business anywhere in the world;
(xvig) franchise agreementArcus does not have any Indebtedness, including guarantees of, or agreements to acquire, any such debt obligation of others;
(xviih) license agreement Arcus does not have any outstanding loan to any Person; and
(i) Arcus does not have any power of attorney outstanding or agreement providing for 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 payment or receipt obligation of royalties any Person, corporation, partnership, joint venture, association, organization or other compensation by entity, except for a power of attorney permitting the Company in connection with endorsement of checks and the intellectual property rights listed in Section 3.17 taking of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not similar actions in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicesbusiness.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.16 of the Disclosure Schedule 2.7 hereto lists the following agreements, whether oral or written, to which the Company Arno is a party and party, which are currently in effect:
, and which relate to the operation of Arno’s business: (i) collective bargaining agreement or contract with any labor union;
; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
; (iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
; (iv) stock purchase or stock option plan;
; (v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
; (vi) confidentiality agreement;
contract, agreement or understanding relating to the voting of Arno Common Stock or the election of directors of Arno; (vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
Arno; (viii) guaranty by it of any obligation for borrowed money or otherwise;
; (ix) lease or agreement under which it Arno is lessee of, or holds or operates any property, real or personal, owned by any other party, for which the annual rental exceeds $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
25,000; (x) lease or agreement under which it Arno is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
10,000; (xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company Arno from freely engaging in business anywhere in the world;
; (xvi) franchise agreement;
(xviixii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company Arno in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
held by Arno; (xviiixiii) contract or commitment for capital expenditures in excess of $10,000;
50,000; (xixxiv) agreement for the sale of any capital asset not in the ordinary course of business asset; or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiiixvi) other agreement which is either material to the Arno’s business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent business.
(b) To Arno’s knowledge, (i) Arno has performed all obligations required to be performed by it in connection with past practicesthe contracts or commitments required to be disclosed in Schedule 2.7 hereto and is not in receipt of any claim of default under any contract or commitment required to be disclosed under such caption; (ii) Arno has no present expectation or intention of not fully performing any material obligation pursuant to any contract or commitment required to be disclosed under such caption; and (iii) Arno has no knowledge of any breach or anticipated breach by any other party to any contract or commitment required to be disclosed under such caption.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.16 of the Disclosure Except as set forth in Schedule lists the following agreements2.13(a) or as contemplated by this Agreement, whether oral or written, to which neither the Company nor any Subsidiary is a party and which are currently in effectto:
(i) collective bargaining any currently effective agreement (other than purchase orders or contract with work orders issued in the ordinary course of business) with: (a) a top 20 customer, client, purchaser or licensee of the Company and the Subsidiaries or (b) any labor unioncustomer, client, purchaser or licensee representing more than 1% of the revenues of the Company and the Subsidiaries, collectively, as represented by bookings for the fiscal year ended December 31, 2010;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, any currently effective agreement (other than as described purchase orders or work orders issued in Section 3.21 the ordinary course of business) with a top 20 supplier or licensor of the Disclosure Schedule (or excluded Company and the Subsidiaries, collectively, as represented by Section 3.21 from inclusion thereunder)expenditures for the fiscal year ended December 31, 2010;
(iii) hospitalization insurance any currently effective agreement under which the Company or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 any of the Disclosure Schedule Subsidiaries has made advances or loans to any other Person (which shall not include advances made to an employee of the Company or excluded by Section 3.21 from inclusion thereunderany of the Subsidiaries in the ordinary course of business consistent with past practice);
(iv) stock purchase [a] any written severance or stock option planretention agreement with any director, officer, employee or other Person, [b] any written employment agreement for any director, officer, employee or other Person who earned a base salary in excess of [i] $125,000 if residing in the United States or the United Kingdom or [ii] $75,000 if residing elsewhere; [c] any standard form agreements used for any director, officer, employee or other Person; and [d] any agreement relating to loans or advances to any director, officer or employee of the Company or any of the Subsidiaries;
(v) contract any agreement with a third party consultant, sales representative, distributor, dealer or other independent contractor to which either the Company or a Subsidiary is a party under which the Company made any payments in excess of $100,000 in the aggregate for the employment of any officerfiscal year ended December 31, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person2010;
(vi) confidentiality agreementany agreement containing any covenant limiting the right of the Company or any of the Subsidiaries to enter or engage in any line of business or conduct business in any geographic territory or market or otherwise to compete with any Person in any line of business, or requiring the Company or any Subsidiary to deal on an exclusive basis with any other party;
(vii) other than agreements conforming to the Company’s standard form of employment agreement or indenture relating independent contractor services agreement disclosed in Schedule 2.13(a)(vii), any currently effective agreement of which the Company has knowledge to which any employee, consultant or independent contractor of the Company or a Subsidiary is bound that in any manner purports to: (a) restrict the freedom of such employee, consultant or independent contractor to engage in any line of business or activity that relates to the borrowing of money Business or (b) assign to mortgagingany other Person such employee’s, pledging consultant’s or otherwise placing a lien on independent contractor’s rights to any of Intellectual Property that relates to the assets of the CompanyBusiness;
(viii) guaranty any currently effective joint venture, partnership and other agreement (however named) involving a sharing of profits, losses, costs or liabilities by it of any obligation for borrowed money the Company or otherwise;
(ix) lease or agreement under which it is lessee of, or holds or operates any property, real or personal, owned by a Subsidiary with any other party, for which the annual rental exceeds $3,000Person, other than as described in Section 3.12 sales commissions agreements and similar arrangements with employees of the Disclosure Schedule;
(x) lease Company 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 $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders Subsidiaries entered into in the ordinary course of business consistent with past practices);
(ix) any power of attorney relating to the Company or a Subsidiary that is currently effective and outstanding;
(x) any currently effective agreement containing a written representation or warranty regarding any features, functionality or performance of any products or services of the Company or any of the Subsidiaries that is materially different from the Company’s or the Subsidiaries’ standard warranties for such products or services and for which the Company or any of the Subsidiaries have any outstanding or potential obligations;
(xi) any currently effective agreement: (a) relating to the disposition or acquisition by the Company or any of the Subsidiaries occurring after the date of this Agreement of any business, line of business, operations, real property or assets not in the ordinary course of business, (whether by merger, sale of capital stock or membership interests, sale of assets or otherwise) or (b) pursuant to which the Company or any of the Subsidiaries has any ownership interest in any other Person or other business enterprise other than the Subsidiaries;
(xii) contract or group of related contracts with the same party any currently effective agreement providing for the sale indemnification or holding harmless of products any current or services under which former director, officer, employee or consultant by the undelivered balance Company or any of such products the Subsidiaries and any other agreement requiring the Company or services has any Subsidiary to indemnify a sales price in excess of $2,000 (third party, other than purchase orders pursuant to (i) agreements entered into in the ordinary course of business materially consistent with past practices);
(xiii) contract or group forms of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not any of its Affiliates provided to Buyer, (ii) agreements entered into in the ordinary course of business providing for indemnification against third party claims arising from gross negligence, personal injury, willful misconduct or, to the extent materially consistent with past industry practices, breach of contract and (iii) non-negotiated “shrink wrap,” “click wrap” or “standard form” licenses for readily commercially available, off the shelf software used by the Company or any of the Subsidiaries;
(xiii) any currently effective agreement relating to any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements relating to the borrowing of money or extension of credit in a principal amount in excess of $50,000 individually or $150,000 in the aggregate that is outstanding or may be incurred on the terms thereof, other than accounts receivable and payables in the ordinary course of business, and any agreement relating to the granting by the Company or any Subsidiary of an Encumbrance on any of its material assets;
(xiv) any currently effective agreement whereby the Company or any of the Subsidiaries: (a) has granted to any Person an ownership interest in or exclusive license or exclusive sublicense to any Intellectual Property or (b) has been granted by any Person an ownership interest in or exclusive license or sublicense to any Intellectual Property; in each case excluding non-negotiated “shrink wrap” or “click wrap” licenses for readily commercially available, off the shelf software;
(xv) any currently effective agreement for which compliance with the U.S. Federal Acquisition Regulation is required pursuant to the terms thereof;
(xvi) any currently effective agreement pursuant to which the Company or any of the Subsidiaries is required to provide “most favored nations” or similar pricing;
(xvii) any currently effective contract set forth in Schedule 5.16(a) to be assigned to the Company or any Subsidiary by Zebra Enterprise Solutions Corp. or any other Affiliate of the Company in connection with the transactions contemplated by Section 5.16; or
(xviii) any material amendment, supplement or modification in respect of any of the foregoing, except as entered into in the ordinary course of business relating to the sale or license of additional software, products or services.
(b) Each of the contracts set forth on Schedule 2.13(a) (the “Material Contracts”) is the legal, valid and binding obligation of the Company and/or the Subsidiaries, as applicable, enforceable against them in accordance with its terms and in full force and effect. To the Company’s knowledge, each Material Contract is the legal, valid and binding obligation of each party thereto other than the Company or any of the Subsidiaries, enforceable against such party in accordance with its terms and in full force and effect, 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 the Subsidiaries are in material breach of, or material default under, any Material Contract. Neither the Company nor any of the Subsidiaries have received any written notice of, and the Company does not have any knowledge of, any claimed breach or the occurrence of any event which after the passage of time or the giving of notice or both would constitute a breach by any party to any Material Contract. Neither the Company nor any of the Subsidiaries have received any written notice of, and the Company does not have any knowledge of, any contemplated termination or nonrenewal or material reduction in the performance of, or of the purchase or sale of goods or services under, any Material Contract. None of the rights of the Company or any of the Subsidiaries under the Material Contracts have been or will be impaired in any material respect by the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement. All of the rights of the Company and the Subsidiaries under the Material Contracts will be enforceable by the Company and the Subsidiaries immediately after the Closing without the consent or agreement of any other party, 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). The Company and the Subsidiaries have provided Buyer copies of all Material Contracts.
Appears in 1 contract
Sources: Securities Purchase Agreement (Zebra Technologies Corp)
Contracts and Commitments. (a) Section 3.16 of the The Disclosure Schedule lists (and the Company has provided true and correct copies to the Buyer of) each of the following agreements, whether oral or written, 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 are currently in effect:the executory obligation of the Company or the Subsidiary involves an individual amount of less than $10,000 (unless a different amount is specified below):
(i) collective bargaining agreement or contract Contracts with any labor unionpresent or former stockholder, director, officer, employee, partner or consultants;
(ii) bonusContracts for the future purchase of, pensionor payment for, profit sharingsupplies or products, retirement or other form for the performance of deferred compensation planservices by a third party, other than as described in Section 3.21 excess of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder)$20,000 in any individual case;
(iii) hospitalization insurance Contracts to sell or other welfare benefit plan supply products or practiceto perform services, whether formal or informal, other than as described in Section 3.21 excess of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder)$10,000 in any individual case;
(iv) stock purchase notes, debentures, bonds, conditional sale agreements, equipment trust agreements, letter of credit agreements, reimbursement agreements, loan agreements or stock option planother Contracts for the borrowing or lending of money, agreements or arrangements for a line of credit or guarantee, pledge or undertaking in any manner (including guarantees of lease obligations) whatsoever of the indebtedness of any other person or entity;
(v) contract for Contracts limiting or restraining the employment Company or the Subsidiary from engaging or competing in any line of business or any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such persongeographical area;
(vi) confidentiality agreementContracts relating to any material license, franchise or distributorship, or copyright, or to any ideas, technical assistance or other know-how of or used by the Company or the Subsidiary;
(vii) agreement Collective bargaining agreements or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Companyother contracts with labor unions;
(viii) guaranty by it Agreements relating to severance arrangements, retirement benefits, deferred compensation or termination of any obligation for borrowed money or otherwise;employment; and
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into Contracts not made in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for that individually involve the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;more than $10,000.
(xviiib) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for Neither the sale of any capital asset not in Company, the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates Subsidiary nor, to the Company Company's knowledge, any other party is in default under, nor to the Company's knowledge, has any event occurred that (other than for employment on customary terms);
(xxiwith or without the giving of notice or lapse of time, or both) contract would constitute a default under which a change in control of the Company terminates or modifies any of the Company's rights Contracts, which default could reasonably be expected to have a material adverse effect on the Business Condition. Neither the Company nor the Subsidiary has received any communication from, or obligations;
(xxii) contract for the distribution of given any communication to, any other party indicating that the Company's products (including , the Subsidiary or such other party, as the case may be, is currently or by the lapse of time will be in default under any distributorContract, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either default could reasonably be expected to have a material to adverse effect on the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicesBusiness Condition.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.16 Schedule 3.17 contains a complete and accurate list of the Disclosure Schedule lists all ------------- contracts, agreements, commitments, instrument and obligations (whether written or oral, contingent or otherwise) of Sellers relating to Sellers' Business concerning the following agreements, whether oral or written, to which matters (the Company is a party and which are currently in effect:"Sellers Agreements"):
(i) collective bargaining agreement the lease (as lessee or contract with lessor) or license (as licensee or licensor) of any labor unionreal or personal property (tangible or intangible);
(ii) bonusthe employment or engagement of any officer, pensiondirector, profit sharingemployee, retirement consultant or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder)agent;
(iii) hospitalization insurance any arrangement for bonuses or other welfare benefit plan incentive compensation, de- ferred compensation, supplemental retirement payments or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder)like;
(iv) stock purchase any plan, contract or stock option planarrangement providing for insurance for any officer or employee or member of his or her family (other than conventional life, health, accident or similar plans available to Sellers' employees generally);
(v) contract for any arrangement limiting the employment freedom of Sellers to compete in any officer, individual employee manner in any line of business or other person on a full-time requiring Sellers to share revenues or consulting basis or relating to severance pay for any such personprofits;
(vi) confidentiality agreementany arrangement that could reasonably be anticipated to have a material adverse effect on Sellers' operation of Sellers' Business financial or otherwise;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into arrangement not in the ordinary course Ordinary Course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than Business and any contract or group of related contracts agreement for the purchase or sale of products or servicesreal estate; and
(viii) continuing over any other arrangement that requires performance for a period of more than six months from the date 90 days or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures that requires payments in excess of $10,000;5,000.
(xixb) agreement for Sellers have delivered to RCGSE true and complete copies of all Sellers Agreements. The Sellers Agreements are valid and effec- tive in accordance with their terms, and there is not under any of such Sellers Agreements
(i) any existing or claimed default by Sellers or event which with the sale notice or lapse of time, or both, would constitute a breach by Sellers, or (ii) any existing or claimed default by any other party or event which with notice or lapse of time, or both, would constitute a default by any such party. Except with respect to the consents and/or waivers to be obtained by Sellers, the continuation, validity and effective- ness of the Sellers Agreements will not be affected by their assignment to RCGSE nor will the assignment constitute an event of default under any Sellers Agreement. All Sellers Agreements are assignable to RCGSE either without consent of any capital asset not in Person or with consent and such consent will be obtained prior to Closing and all Sellers Agreements will be binding on RCGSE according to their terms after the ordinary course Closing. Sellers have no Knowledge of business any actual or exceeding $10,000;threatened termination, cancellation or limitation of any Sellers Agreements that would have an adverse effect on Sellers, financial or otherwise. Sellers have no Knowledge of any pending or threatened bankruptcy, insolvency or similar proceeding with respect to any other party to the Sellers Agreements.
(xxc) contract DCAMS has delivered to RCGSE a true and complete copy of the In-patient Agreement. The In-patient Agreement is valid and effective in accordance with its terms, and there is not under the In-patient Agreement (i) any affiliate existing or claimed default by DCAMS or event which in with the notice or lapse of time, or both, would constitute a breach by DCAMS, or (ii) any way relates existing or claimed default by any other party or event which with notice or lapse of time, or both, would constitute a default by any such party. The continuation, validity and effectiveness of the In-patient Agreement will not be affected by its assignment to RCGSE nor will the assignment constitute an event of default under the In-patient Agreement provided that RCGSE remains bound by and adheres to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control terms of the Company terminates In-patient Agreement under the Assignment and Assumption Agreement, the form of which is attached hereto as Exhibit B. The In-patient Agreement is --------- assignable to RCGSE without consent of any Person and will con- tinue to be binding according to its terms after the Closing. There is no actual or modifies any threatened termination, cancellation or limitation of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicesIn-patient Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Dialysis Corp of America)
Contracts and Commitments. (a) Section 3.16 of the The Disclosure Schedule lists the following agreementscontracts and agreements (other than the Leases, whether oral or written, which are dealt with separately under ss.3(k)) to which the Company Target is a party and which are currently in effect:(other than the Leases, the "Material Contracts"):
(i) collective bargaining any material agreement (or contract with group of material related agreements) for the lease of personal property to or from any labor unionPerson;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule any agreement (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiiagreements) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products raw materials, commodities, supplies, products, or other personal property, or for the furnishing or receipt of services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiviii) contract any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related contracts with the same party calling agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any rebatescapitalized lease obligation or under which it has imposed a Lien on any of its assets, allowances, discounts, performance money tangible or compensation of any type previously paid or granted or to be paid or granted to or by the Companyintangible;
(xvv) contract which prohibits the Company from freely engaging in business anywhere in the worldany material agreement concerning confidentiality or noncompetition;
(xvivi) franchise any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement of Target for the benefit of its current or former directors, officers, and employees;
(vii) any collective bargaining agreement;
(xviiviii) license any agreement or agreement providing for the payment or receipt employment of royalties any individual on a full-time, part-time, consulting, or other basis providing annual compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,00020,000 or providing material severance benefits;
(xixix) any agreement for under which it has advanced or loaned any amount to any of its Affiliates, directors, officers, and employees outside the sale Ordinary Course of Business; and
(x) any agreement under which the consequences of a default or termination could have a material adverse effect on the business, financial condition, operations, results of operations, or future prospects of the Target. The Material Contracts are in full force and binding upon the parties thereto, and no consent of any capital asset not other contracting parties is required in order to consummate the ordinary course transactions contemplated hereby. Buyer has been provided with copies of business or exceeding $10,000;
(xx) each Material Contract. The copy of each such contract with any affiliate which in any way relates furnished to the Company (other than for employment on customary terms);
(xxi) contract under which Buyer is a change in control true and complete copy of the Company terminates document it purports to represent and reflects all amendments thereto made through the date of this Agreement. Neither Target nor Seller has received any notice that a default by Target or modifies Seller has occurred under any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributorMaterial Contracts, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material and, to the business knowledge of Seller, no default by the Company or other contracting parties has occurred thereunder. To the knowledge of Seller, other than with respect to the transactions contemplated hereby hereby, no event, occurrence or which was not entered into in condition exists which, with the ordinary course lapse of business consistent with past practicestime, the giving of notice, or both, or the happening of any further event or condition, would become a default by Target thereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Mattress Discounters Corp)
Contracts and Commitments. (a) Section 3.16 The “Contracts Schedule” attached hereto lists all of the Disclosure Schedule lists the following agreements, whether oral or written, written agreements to which any member of the Company Group is a party and which are currently in effect, in each case as of the date hereof:
(i) collective bargaining agreement or contract with any labor union;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) lease or agreement under Contracts 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party provide for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services by or to any member of the Company Group and under which the undelivered balance of such products or services has a sales sale price in excess of $2,000 (250,000 other than purchase orders entered into for sale of inventory in the ordinary course of business;
(ii) Contracts which involve commitments to make capital expenditures or which provide for the purchase of goods or services by any member of the Company Group from any one Person under which the undelivered balance of such products or services has a purchase price in excess of $100,000;
(iii) Contracts relating to the acquisition or disposition by the Company Group of any Person, a material amount of stock or assets of any other Person or any real property, whether by merger, sale of stock, sale of assets, consolidation, share exchange or otherwise;
(iv) Contracts relating to Indebtedness of the Company Group or any guaranty by any member of the Company Group of any obligation in respect of Indebtedness;
(v) employment Contracts and Contracts with independent contractors or consultants providing for aggregate cash payments to any Person in any calendar year in excess of $100,000;
(vi) Contracts with any employee leasing agency for the engagement of temporary or leased employees by any member of the Company Group;
(vii) broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts to which any member of the Company Group is a party; involving consideration in excess of $100,000;
(viii) Contracts pursuant to which any member of the Company Group is a lessor or a lessee of any property, personal or real, including all Leases for the Leased Real Property, 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 $100,000;
(ix) Contracts that restrict the ability of any member of the Company Group to compete in any line of business consistent or with past practices)any Person or in any geographic area or during any period of time;
(x) Contracts to which any member of the Company Group is a party that provide for any joint venture, partnership or similar arrangement by the Company Group;
(xi) Contracts between or among any member of the Company Group on the one hand and any Company Stockholder or any Affiliate of a Company Stockholder (other than the Company) on the other hand;
(xii) Contracts that provide specifically for the assumption by the Company of any Tax or environmental Liability of any Person, or Contracts involving consideration in excess of $250,000 that provide for the indemnification or assumption by the Company of Liabilities of any Person;
(xiii) contract collective bargaining agreements or group of related contracts Contracts with any union to which the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over Company is a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000party;
(xiv) contract all change in control, retention, severance or group of related contracts similar Contracts with the same party calling for any rebatescurrent or former employee, allowances, discounts, performance money director or compensation of any type previously paid or granted or to be paid or granted to or by the Companyconsultant;
(xv) contract all Contracts involving the payment of any earn-out, deferred or contingent payment, or pursuant to which prohibits the Company from freely engaging in business anywhere in the worldother indemnification or material obligations remain outstanding;
(xvi) franchise agreement;all Contracts containing minimum purchase requirements or exclusivity restrictions on the Company Group; and
(xvii) license agreement or agreement providing for Contracts relating to the payment or receipt of royalties or other compensation by Leased Real Property, including the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;Leases.
(xviiib) contract Except as disclosed on the attached “Contracts Schedule”: (i) no Contract set forth (or commitment for capital expenditures required to be set forth) on the attached “Contracts Schedule” has been breached or is in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which default in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control material respect or has been canceled by any member of the Company terminates Group, or modifies to the Company’s Knowledge, by any other party thereto, which has not been duly cured or reinstated and there has not occurred any event (with or without the lapse of time or the giving of notice or both) which would constitute such a breach or default of such contract; (ii) no member of the Company Group is in receipt of any written claim of default under any such Contract since May 1, 2013; and (iii) each Contract listed on the attached “Contracts Schedule” is valid, binding and enforceable against the Company or one or more members of the Company Group, as applicable, and to the Knowledge of the Company's , all other parties thereto, except as such enforceability may be limited by (A) applicable insolvency, bankruptcy, reorganization, moratorium or other similar laws affecting creditors’ rights generally, and (B) applicable equitable principles (whether considered in a proceeding at law or obligations;
(xxii) contract for the distribution in equity). The Company has made available or delivered to Purchaser true, correct and complete copies of all of the Company's products Contracts listed (including any distributor, sales or required to be listed) on the “Contracts Schedule,” together with all amendments and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practiceswaivers thereto.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.16 of the Disclosure Schedule lists the following agreements, whether oral or written, to which the Company is a party and which are currently in effect:
4.11 attached hereto lists: (i) collective bargaining agreement or contract with any labor union;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation planall contracts relating to the Business, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practiceExcluded Assets, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into not made in the ordinary course of business consistent with past practices);
that (xiiA) contract require any of the Sellers 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 their Affiliates to pay in excess of $2,000 25,000 on an annual basis or in excess of $50,000 over the current contract term, or (B) is material to the business, operations, assets, financial condition, results of operations or prospects of the Business, taken as a whole, (ii) each partnership, joint venture, contribution, or other than purchase orders entered into in agreement to which any Seller is a party or is otherwise bound involving a sharing of profits, losses, costs or liabilities by the ordinary course Seller or any of business consistent with past practices);
its Affiliates or any third party, relating to the Business; (xiiiiii) each written contract or group other agreement to which any Seller is a party and containing terms which impose or purport to impose non-competition obligations upon the Business; (iv) each written warranty, guaranty or other similar undertaking with respect to contractual performance extended by Sellers with respect to the Business, (v) all real property leases, subleases, under leases, licenses or other occupancy agreements, and all amendments, modifications and supplements thereof (each, a “Real Estate Lease”) to which any Seller or any of related contracts with its Affiliates is a party relating to the same party Business, (other than vi) any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted relating to or by evidencing indebtedness of the Company;
(xv) contract which prohibits Business or the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement Seller or agreement providing for the payment or receipt any of royalties or other compensation by the Company its Affiliates in connection with the intellectual property rights listed in Section 3.17 Business, including mortgages, other grants of the Disclosure Schedule;
security interests, guarantees or notes, and (xviiivii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract contracts with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights Sellers, any Affiliates of any Sellers or obligations;any current officer, director, general partner or managing member of the Sellers or any Affiliate of any of the Sellers with respect to the Business ((i) — (vii) collectively, “Material Contracts”).
(xxiib) contract Except as set forth on Schedule 4.11(b), no Seller has obtained any letter of credit or surety bond for, or given any irrevocable power of attorney, in each case, relating to the Business, to any person, firm or corporation for any purpose whatsoever, in each case, that is outstanding or will be in effect on the distribution Closing Date.
(c) Each Material Contract is a legal, valid, binding and enforceable agreement and is in full force and effect. Except as set forth on Schedule 4.11(c) none of the Company's products Sellers have received any written notice of termination or written notice of any default or event that with notice or lapse of time, or both, would constitute a default by any of the Sellers under any Material Contract that would permit termination, give rise to a material penalty or materially adversely modify the terms thereof. None of the Sellers is in default under any Material Contract, nor, to the Sellers’ knowledge, is any other party to any Material Contract in breach of or default thereunder and no event has occurred that, with the lapse of time or the giving of notice or both, would constitute a breach or default by any of the Sellers or any other party thereunder.
(d) Sellers have heretofore delivered or made available to Purchaser true and correct copies of all of the Material Contracts (including any distributorthose Assumed Contracts that are Material Contracts), sales including all amendments, supplements and original equipment manufacturer contracts); or
(xxiii) modifications thereto and provided access to other agreement which is either material to the business contracts of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicesBusiness.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.16 of Except as specifically contemplated by this Agreement and except as set forth in Schedule 4.17 attached hereto (the Disclosure Schedule lists the following agreements, whether oral or written, to which "CONTRACTS SCHEDULE") neither the Company nor any of its Subsidiaries is a party and which are currently in effect:
to or bound by, whether written or oral, any: (i) collective bargaining agreement or contract with any labor union;
; (ii) bonus, pension, profit sharing, retirement management agreement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, partner, individual employee or other person on a fullfull time, part-time or consulting basis or relating to severance pay providing for the payment of any such person;
(vi) confidentiality agreement;
(vii) agreement cash or indenture relating to other compensation or benefits upon the borrowing sale of money all or to mortgaging, pledging or otherwise placing a lien on any material portion of the assets of the Company;
Company or any Subsidiary thereof or a change of control (viiiother than at-will employment agreements with its employees which do not commit the Company or any of its Subsidiaries to severance, termination or other similar payments); (iii) guaranty by it of agreement or indenture under which the Company or its Subsidiaries has created, incurred, assumed or guaranteed any obligation indebtedness for borrowed money or otherwise;
(ix) any capitalized lease or agreement under which it is lessee ofobligation, or holds created or operates suffered to exist a security interest, pledge or other lien on any propertyof its assets; (iv) contract, real or personalincluding, owned by any other partybut not limited to, for which the annual rental exceeds $3,000purchase orders, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of raw materials, commodities, supplies, products or services) continuing other personal property or for the furnishing or receipt of services which either calls for performance over a period of more than six months from the date one year (except if such contracts do not involve a sum in excess of $500,000 annually) or dates thereof, involves a sum in excess of $1,000,000; (v) contract not terminable by it on upon 30 (thirty) days' days or less notice without penalty and involving more than premiums or penalties (except if such contracts do not involve a sum in excess of $5,000;
250,000 per year), (xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xvvi) contract which prohibits the Company it from freely engaging in business anywhere in the world;
; (xvivii) contract relating to the distribution, marketing or sales of its products; (viii) franchise agreement;
or license agreements; (xviiix) license power of attorney; (x) agreement or agreement providing for contract relating to the payment acquisition or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 sale of the Disclosure Schedule;
business (xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contractsmaterial portion thereof); or
or (xxiiixi) other agreement which is either material to the business of the Company it whether or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent business.
(b) With respect to each of the Company's and its Subsidiaries' agreements and contracts required to be disclosed on Schedule 4.17 or any other Schedule hereto: (i) such agreement or contract is legal, valid, binding, and enforceable in accordance with past practicesits terms (except as enforceability thereof may be limited by bankruptcy or other laws affecting creditor's rights generally and limitations on the availability of equitable remedies), and is in full force and effect; (ii) neither the Company nor its Subsidiaries is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default by the Company or its Subsidiaries or permit any third party to terminate, modify, or accelerate, such agreement or contract; (iii) neither the Company nor its Subsidiaries has repudiated any provision of such agreement, contract or arrangement; (iv) to the best of the Company's and its Subsidiaries' knowledge, no third party is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default by such third party or permit the Company or its Subsidiaries to terminate, modify, or accelerate, such agreement, contract or arrangement; (v) neither the Company nor its Subsidiaries has any present expectation or intention of not fully performing any obligation on its part to be performed pursuant to any such agreement or contract; (vi) neither the Company nor its Subsidiaries has any knowledge of any breach or anticipated breach by any other party to any such agreement or contract; (vii) to the knowledge of Sellers, no unfilled customer order or commitment obligating the Company or any of its Subsidiaries to process, manufacture or deliver products or perform services will result in a material loss to the Company or any of its Subsidiaries upon completion of performance, and (viii) to the knowledge of Sellers, with respect to verbal or written contracts for which the Company's or its Subsidiaries' payments or receipts are presently anticipated to exceed $250,000 neither the Company nor any of its Subsidiaries is obligated to purchase any property or services at a price greater than prevailing market price, sell any property or services at a price less than prevailing market price, pay rentals or royalties at a rate greater than the prevailing market price, or act as lessor or licensor at a rate less than the prevailing market price.
(c) The Company has provided Buyer with a true and correct copy of all written contracts which are referred to on Schedule 4.17, together with all amendments, waivers or other changes thereto. Schedule 4.17 contains an accurate and complete description of all material terms of all oral contracts referred to therein.
Appears in 1 contract
Sources: Stock Purchase Agreement (Dura Automotive Systems Inc)
Contracts and Commitments. (a) Section 3.16 Schedule 2.10 of the Seller Disclosure Schedule lists contains a true, complete and correct list and description of the following contracts and agreements, whether oral written or writtenoral, to which the Company is a party and which are currently included in effect:or relate in any way to any of the Assets being conveyed to the Buyer pursuant to this Agreement (such contracts and agreements, together with all contracts, agreements and commitments concerning confidentiality or non-competition, collectively referred to herein as the "Contracts"):
(i) collective bargaining agreement all loan agreements, indentures, mortgages and guaranties to which the Seller is a party or contract with by which the Seller or any labor unionof its property is bound;
(ii) bonusall pledges, pensionconditional sale or title retention agreements, profit sharingsecurity agreements, retirement equipment obligations, personal property leases and lease purchase agreements to which the Seller is a party or other form by which the Seller or any of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder)its property is bound;
(iii) hospitalization insurance all contracts, agreements, commitments, purchase orders or other welfare benefit plan understandings or practicearrangements to which the Seller is a party or by which the Seller or any of its property is bound which (A) involve payments or receipts by the Seller of more than $5,000 in the case of any single contract, whether formal agreement, commitment, understanding or informal, other than as described in Section 3.21 arrangement under which full performance (including payment) has not been rendered by all parties thereto or (B) which may materially adversely affect the condition (financial or otherwise) of any of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder)Assets;
(iv) stock purchase or stock option planall agency, marketing, distributor, reseller, sales representative, OEM, license and similar agreements to which the Seller is a party;
(v) contract for all contracts, agreements or other understandings or arrangements between the employment of Seller any stockholder, officer, individual employee director, employee, consultant or other person on a full-time or consulting basis or relating to severance pay for any such personaffiliate of the Seller;
(vi) confidentiality agreementall leases and subleases, whether operating, capital or otherwise, under which the Seller is lessor or lessee;
(vii) agreement all contracts and other arrangements under which the consequences of a default or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing termination could have a lien material adverse effect on any of the assets of the CompanyAssets;
(viii) guaranty by it of any obligation for borrowed money all contracts, agreements and commitments concerning confidentiality or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders non-competition entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset Seller not in the ordinary course of business or exceeding $10,000its business;
(xxix) all partnership, collaboration and joint venture agreements to which the Seller is a party or by which the Seller or any of its properties is bound; and
(x) any other Contract Right, material agreement or contract with any affiliate which in any way relates entered into by the Seller.
(b) With respect to the Company Contracts:
(i) each Contract is a valid and binding agreement of the Seller, enforceable against the Seller in accordance with its terms, and the Seller does not have any knowledge that any Contract is not a valid and binding agreement of the other than for employment on customary terms)parties thereto;
(xxiii) contract the Seller has fulfilled all material obligations required pursuant to the Contracts to have been performed by the Seller on its part prior to the date hereof and the Seller has no reason to believe that it will not be able to fulfill, when due, all of its obligations under the Contracts which a change in control of remain to be performed by the Company terminates or modifies any of Seller after the Company's rights or obligationsdate hereof;
(xxiiiii) contract for the distribution Seller is not in breach of or default under any Contract, and no event has occurred which with the passage of time or giving of notice or both would constitute such a default, result in a loss of rights or result in the creation of any lien, charge or encumbrance, thereunder or pursuant thereto;
(iv) to the knowledge of the Company's products (including Seller, there is no existing breach or default by any distributorother party to any Contract, sales and original equipment manufacturer contracts); orno event has occurred which with the passage of time or giving of notice or both would constitute a default by such other party, result in a loss of rights or result in the creation of any lien, charge or encumbrance thereunder or pursuant thereto;
(xxiiiv) other agreement which the Seller is either material not restricted by any Contract from carrying on the portion of its business relating to the business of the Company or the transactions contemplated hereby or which was not entered into Assets anywhere in the ordinary course world; and
(vi) the Seller has no written or oral Contracts to sell products or perform services which are expected to be performed at, or to result in, a loss.
(c) The continuation, validity and effectiveness of business consistent each Contract will not be affected by the transfer thereof to Buyer under this Agreement and all such Contracts are assignable to Buyer without the consent of any other party.
(d) True, correct and complete copies of all Contracts have previously been delivered by the Seller to the Buyer provided, however, that with past practicesrespect to contracts, agreements and commitments concerning confidentiality, or non-competition, only the agreements set forth in Section 2.10(a)(viii) have previously been delivered to the Buyer.
Appears in 1 contract
Contracts and Commitments. Set forth in Schedule 4.11 is a complete and correct list as of the date hereof of all agreements, contracts and commitments of the following types, written or oral, that relate solely to the Panel Business and to which Seller is a party or by which it or any of its properties is bound as of the date hereof: (a) Section 3.16 of the Disclosure Schedule lists the following agreementsmortgages, whether oral or writtenindentures, to which the Company is a party security agreements and which are currently in effect:
(i) collective bargaining agreement or contract with any labor union;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture agreements and instruments relating to the borrowing of money money; (b) employment and consulting agreements; (c) collective bargaining agreements; (d) bonus, profit-sharing, compensation, stock option, pension, retirement, deferred compensation, insurance or to mortgagingother similar plans, pledging agreements, trusts or otherwise placing a lien funds for the benefit of employees (whether or not legally binding); (e) sales agency, manufacturer's representative or distributorship agreements that are not cancelable by Seller without penalty on any of the assets of the Company;
60 or fewer days notice; (viiif) guaranty by it of any obligation for borrowed money agreements, orders or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party commitments for the purchase by Seller of raw materials, supplies or finished products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into not in the ordinary course of business consistent with past practices);
business; (xiig) contract agreements, orders or group of related contracts with the same party commitments for the sale by the Panel Business of products or its services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into not in the ordinary course of business consistent with past practices);
business; (xiiih) contract licenses of patents, trademarks and other industrial property rights; (i) agreements or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment commitments for capital expenditures in excess of $10,000;
10,000 (xixit being warranted that all unlisted such agreements or commitments do not exceed $25,000 in the aggregate for all projects); (j) agreement for brokerage or finders' agreements; (k) agreements or instruments relating to the sale extension of credit by Seller not in the ordinary course of business; (l) other agreements or contracts with any person who is a shareholder, officer or director of Seller or an affiliate of any capital asset such shareholder, officer or director; and (m) other agreements, contracts and commitments not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates one case involves payments or receipts of more than $25,000. Complete and correct copies of all written agreements, contracts and commitments (together with all amendments thereto) and accurate written descriptions of any oral agreements so listed have been made available to Purchaser. To the Company (other than for employment on customary terms);
(xxi) contract under which a change knowledge of Seller such agreements, contracts and commitments are in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practices.full force and
Appears in 1 contract
Sources: Asset Purchase Agreement (Continental Circuits Corp)
Contracts and Commitments. (a) Section 3.16 Schedule 3.11(a) lists all of the Disclosure Schedule lists following Contracts (the following agreements, whether oral or written, “Material Contracts”) to which either Seller (as such Contracts relate primarily to the Company Business) or Medegen is a party and party, which are currently in effecteffect and have obligations remaining thereunder:
(i) collective bargaining agreement all Contracts to make future capital expenditures or contract with that provide for the future purchase of a Person, goods or services by Seller or Medegen from any labor unionone Person, other than Contracts that were entered into in the Ordinary Course for the purchase of inventory and involve an expenditure, individually or in the aggregate under such Contract by Seller or Medegen, as applicable, of less than $150,000;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract all Contracts that provide for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase future sale of products or services under which the undelivered balance of such products by Seller or services is in excess of $1,000 (Medegen, other than purchase orders Contracts that were entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party Ordinary Course and provide for the sale of products or services under which with a value of less than $150,000;
(iii) all Contracts relating to Indebtedness of Seller (with respect to the undelivered balance of such products Business) or services has a Medegen that will not be repaid or released at or prior to the Closing;
(iv) all Contracts containing continuing delivery obligations with dealers, distributors or sales price representatives in excess of $2,000 150,000;
(v) all employment, deferred compensation, severance, bonus, retirement, consulting, management services or non-competition agreements with any Business Employee, officer of Seller or Medegen or full-time consultant providing services to the Business or Medegen whose annual base salary or base wages or annual compensation is equal to an amount greater than $125,000;
(vi) all Contracts providing for any payments that are conditioned, in whole or in part, on a change of control of the Business or Medegen, or any of the transactions of the type contemplated hereby;
(vii) all collective bargaining Contracts, works council Contract, trade union Contracts, and other material Contracts with any union or labor organization to which Seller or Medegen is a party (each a “Collective Bargaining Agreement”);
(viii) all Contracts pursuant to which Seller or Medegen is currently a lessor or a lessee of any property, personal or real, except for any leases of personal property under which the aggregate annual rent or lease payments do not exceed $150,000;
(ix) any Contract concerning a partnership or joint venture;
(x) any Contract involving any restrictions with respect to the geographical area of operations or scope or type of business of Medegen or Seller or prohibiting Medegen or Seller from competing or soliciting customers;
(xi) any Contract under which Seller or Medegen has made an advance or loan (other than purchase orders entered into trade payables, accounts payables or similar trade expenses) to any other Person and in excess of $150,000;
(xii) any Contract for the sale or acquisition of a business or a significant portion thereof or assets relating thereto (except for any sale or acquisition in the ordinary course Ordinary Course of business consistent with past practicesInventory that is less than $250,000);
(xiii) contract any power of attorney or group of related contracts agreement with the same party any Person (other than any contract an officer or group of related contracts for Medegen) pursuant to which such Person is granted the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000authority to legally bind Medegen;
(xiv) contract any Assigned Contract under which Seller agrees, or group of related contracts any Contract under which Medegen agrees, to indemnify any Person for $200,000 or more (except for Contracts entered into during the Ordinary Course or Contracts with the same party calling for any rebates, allowances, discounts, performance money end users or compensation of any type previously paid or granted or to be paid or granted to or by the Company;invoiced accounts); and
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;all other Contracts that individually require payment to or by Seller or Medegen of more than $150,000 annually, that cannot be terminated by their terms on less than sixty (60) days’ notice without Liability.
(xvib) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates Seller has provided to Buyer prior to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control date hereof true, correct and complete copies of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products all Material Contracts (including any distributorand all amendments and other modifications to such Contracts). Except as disclosed on Schedule 3.11(b), sales (i) to Seller’s Knowledge, no Material Contract (including any Material Contract required to be included, but not so included on Schedule 3.11(a)) has been breached in any material respect or canceled, or is under material default, by the other party that has not been duly cured or reinstated, (ii) neither Company is in material breach or default under any Material Contract (including any Material Contract required to be included, but not so included on Schedule 3.11(a)), (iii) Seller is not in breach or default under any Seller Unscheduled Contracts and original equipment manufacturer contracts); or
(xxiiiiv) other agreement which is either material to the business Seller’s Knowledge, no event has occurred that with the passage of the Company time or the transactions contemplated hereby giving of notice or which was both would result in or constitute a material breach or default under any such Material Contract (including any Material Contract required to be included, but not entered into so included on Schedule 3.11(a)) by either Company, or, to Seller’s Knowledge, any other party to any such Material Contracts. Each Material Contract (including any Material Contract required to be included, but not so included on Schedule 3.11(a)) is legal, valid, binding, enforceable and currently in full force and effect against the ordinary course applicable Company, and to Seller’s Knowledge, the other parties thereto in accordance with its terms. Neither Company nor, to Seller’s Knowledge, any party to any Material Contract has repudiated any material provision of business consistent with past practicesany such Material Contract. Neither Company has received notice that any party to a Material Contract intends to cancel or terminate such Material Contract or to exercise or not exercise any material option under such Material Contract.
Appears in 1 contract
Contracts and Commitments. Schedule 5.13 lists all of the following contracts or other arrangements (written or oral) to which the Seller is a party or by which it or its assets are bound:
(a) Section 3.16 contracts relating to the purchase, distribution, marketing or sales of the Disclosure Schedule lists Seller’s products, the following agreements, whether oral performance of which will involve payments to or written, to which by the Company is a party and which are currently Seller in effect:
(i) collective bargaining agreement or contract with any labor unionexcess of $50,000;
(iib) bonuscontracts, pension, profit sharing, retirement agreements or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract arrangements for the employment of any officer, individual employee employee, or other person Person on a full-time time, part-time, consulting or consulting basis other basis, the performance of which will involve payments to or relating to severance pay for any such personby the Seller in excess of $50,000;
(vic) confidentiality agreement;
(vii) agreement instruments, agreements or indenture indentures relating to the borrowing of money Funded Indebtedness or to the mortgaging, pledging or otherwise placing a lien Lien on any asset or group of the assets of the CompanySeller;
(viiid) guaranty by it factoring arrangements or other agreements involving the sale of the Seller’s accounts receivable to a third party at a discount;
(e) guarantees of any obligation for borrowed money or otherwiseFunded Indebtedness;
(ixf) lease agreements with respect to the lending or agreement investing of funds;
(g) leases or agreements under which it the Seller is lessee ofthe lessee, sublessee, occupant, holder or holds operator of any real property owned by any other party;
(h) leases or operates agreements under which the Seller is the lessee, sublessee, occupant, holder or operator of any property, real or personal, personal property owned by any other party, for the performance of which will involve payments to or by the annual rental exceeds Seller in excess of $3,000, other than as described in Section 3.12 of the Disclosure Schedule50,000;
(xi) lease leases or agreement agreements under which it the Seller is the lessor of, or sublessor of or permits any third party to occupy, hold or operate, operate any property, real or personal, for which personal property owned or controlled by the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure ScheduleSeller;
(xij) contract assignments, licenses, indemnifications or group agreements with respect to any form of intangible property, including, without limitation, any Intellectual Property;
(k) contracts or groups of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than excluding purchase orders entered into in the ordinary course Ordinary Course of business consistent with past practices);
(xiiBusiness) contract or group of related contracts with the same party for the purchase or sale of products or services under which the undelivered balance of such products or and services has a sales selling price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices)50,000;
(xiiil) contract research and development agreements;
(m) any contracts containing covenants not to compete or group of related contracts with similar provisions (A) binding on the same party Seller, (B) restricting other than any contract or group of related contracts Persons for the benefit of the Seller or (C) which otherwise restrict competition granted by the Seller in favor of a third party;
(n) contracts which contain a “most favored customer” or similar provision;
(o) contracts which contain minimum purchase amounts or sale exclusivity or preference provisions binding on the Seller for the benefit of products a third party;
(p) contracts under which the amount payable by the Seller is dependent on the revenues or servicesincome or similar measure of the Business, or in which the Seller is obligated to pay royalties, commissions or similar payments to any Person;
(q) continuing over a period of more than six months from marketing, agency, advertising, sales representative, broker, distribution, fulfillment or similar contracts that require the date expenditure of, or dates thereofinvolve the receipt of, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which 50,000 in any way relates to consecutive twelve month period after the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts)date hereof; or
(xxiiir) other agreement agreements or instruments which is either are otherwise material to the business Business, and which are not listed in the foregoing clauses of this Section 5.13 (collectively, the “Material Contracts”). Each Material Contract is valid and enforceable against the Seller and, to the Knowledge of the Company Seller, the other parties thereto. Except as specifically disclosed on Schedule 5.13, the Seller has performed in all material respects all obligations required to be performed by it and is not in material default under or in material breach of nor in receipt of any claim of material default or breach under any Material Contract; and no event has occurred which with the passage of time or the transactions contemplated hereby giving of notice or both would result in a material default or breach under any such Material Contract. To the Knowledge of the Seller, no other party to any Material Contract is in default under or in breach of such Material Contract and no event has occurred which was not entered into with the passage of time or giving of notice or both would result in the ordinary course of business consistent with past practicesa material default or breach under any such Material Contract.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.16 EXCEPT for the Leases, Purchase Orders and Other Contracts, true and correct copies of which have been delivered by Seller to Buyer, Seller is not a party to or bound by, and will be a party to or bound by at the time of the Disclosure Schedule lists Closing, with respect to the following Food Courts or any of the other Acquired Assets, any written or oral (I) employment contracts, management or consulting agreements; or service agreements, whether oral (II) contracts with sales representatives, franchisees, agents, media providers, or written, to which other contracts affecting or regarding the Company is a party and which are currently in effect:
marketing of the Food Courts; (iIII) collective bargaining agreement or contract contracts with any labor union;
(ii) bonus, pension, profit sharing, retirement union or association or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule employee group; (or excluded by Section 3.21 from inclusion thereunder);
(iiiIV) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating leases with respect to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) lease or agreement under which it is lessee of, or holds or operates any property, real or personal, owned by whether as lessor or lessee; (V) patent, know-how, trademark, service ▇▇▇▇, copyrights, licenses or other contracts requiring the payment or providing for the receipt of any royalty; (VI) agreements creating a lien or other party, for which the annual rental exceeds $3,000, other than as described security interest in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any personal property, real tangible or personal, intangible; (VII) contracts or commitments for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is capital expenditures in excess of $1,000 (other than purchase orders entered into 5,000.00, in the ordinary course of business consistent with past practices);
aggregate; (xiiVIII) contract agreements creating or group of related providing for long-term debt or continuing credit or any guarantee thereof; (IX) bonus, incentive compensation, stock option or stock purchase plans; (X) contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months 30 days from the date its date; OR (XI) other material contracts, whether or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not made in the ordinary course of business business. Seller has in all material respects performed all obligations required to be performed by Seller to date under the Leases, Purchase Orders and Other Contracts and is not in default under any agreements, leases or exceeding $10,000;
(xx) contract with other instruments or contracts to which Seller is a party or by which Seller is bound, nor to Seller's knowledge are there any affiliate which in outstanding disputes under any way relates to such agreements. Except for any required consents, neither the Company (other than for employment on customary terms);
(xxi) contract under which a change in control execution of this Agreement, nor the Company terminates or modifies any consummation of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby hereby, will result in a breach or which was not entered into default, or result in the ordinary course acceleration of business consistent with past practicesany obligation under, nor cause any termination, cancellation or other loss of benefits under any such agreements, leases or other instruments or contracts.
Appears in 1 contract
Contracts and Commitments. (ai) Section 3.16 TMI has performed all material obligations required to be performed by it and is not in receipt of the Disclosure Schedule lists the following agreements, whether oral any claim or written, notice of default under any material agreement to which the Company TMI is a party or to which any of its assets or properties are subject; TMI does not have any present intention of not performing fully all of such obligations as they become due; TMI does not have any Knowledge of any breach or any anticipated breach of the other parties to any material contract or commitment; and which are currently TMI is not a party to any materially adverse contract or commitment. No purchase commitment by TMI is in effect:
(i) collective bargaining excess of the normal, ordinary and usual requirements of TMI's business or at any excessive price. TMI has no outstanding contract, agreement or contract arrangement with any labor union;officer, director, employee, agent, consultant, advisor, sales representative, distributor or dealer except as fully and accurately described on SCHEDULE 5.1(l). TMI has not given any power of attorney to any Person for any purpose whatsoever.
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 SCHEDULE 5.1(l) of the TMI Disclosure Schedule Schedules lists each of the following contracts, agreements, and other written arrangements to which TMI is a party or by which the assets or properties of TMI may be affected: (i) any written arrangement concerning a partnership or joint venture; (ii) any written arrangement (or excluded by Section 3.21 from inclusion thereunder);
group of related written arrangements) under which TMI has (A) created, incurred, assumed, or guaranteed (or may create, incur, assume or guarantee) Indebtedness in excess of $10,000 or (B) imposed (or may impose) a Security Interest on any of TMI's assets, tangible or intangible; (iii) hospitalization insurance any arrangement not disclosed in the TMI Disclosure Schedules pursuant to any other provision in this Section 5.1 under which the consequences of a default or other welfare benefit plan termination could have a material adverse effect on the assets, Liabilities, business, financial condition, operations, results of operations or practice, whether formal or informal, other than as described in Section 3.21 future prospects of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
TMI; (iv) stock purchase or stock option plan;
(v) any contract for the employment of any officer, individual employee or other person on a full-time, part-time or consulting basis or relating to severance pay for basis; (v) any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
; (ixvi) lease any agreement or agreement under which it is lessee of, commitment with respect to the lending or holds investing of funds by TMI to or operates any property, real or personal, owned by in any other party, for which the annual rental exceeds $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
Person; (xvii) lease any license 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 $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
royalty agreement; (xiviii) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products products, services or servicesreal or personal property; or (ix) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract any other written arrangement or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was written arrangements not entered into by TMI in the ordinary course Ordinary Course of business consistent with past practicesBusiness.
(iii) Except as fully and accurately described on the TMI Disclosure Schedules, TMI is not a party to any verbal contract, agreement, or other arrangement which, if reduced to written form, would be required to be listed on SCHEDULE 5.1(l) of the TMI Disclosure Schedules under the terms of this Section 5.1(l). All of the verbal agreements listed on SCHEDULE 5.1(l) of the TMI Disclosure Schedules will be terminated on or before the Effective Time and TMI will have no further Liability therefor.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.16 Schedule 5.10 of the Disclosure Schedule lists Schedules contains a list of all Contracts of the following agreements, whether oral or written, types with respect to the Purchased Business to which the Company Seller or Media Sub is a party and or by which are currently in effect:the Seller or Media Sub is bound as of the date hereof (the “Material Contracts”):
(i) collective bargaining agreement any Contract pursuant to which the Seller or contract with any labor unionMedia Sub received more than $50,000 over the past twelve (12) months;
(ii) bonusany Contract which obligates, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 the reasonable discretion of the Disclosure Schedule Seller or Media Sub is reasonably likely to obligate, the Seller or Media Sub to pay more than $50,000 over any future twelve (or excluded by Section 3.21 from inclusion thereunder)12) month period in the next five (5) years;
(iii) hospitalization insurance any indemnification, employment, “change of control,” retention, severance, consulting or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);Contract with any Business Employee; and
(iv) stock purchase any mortgages, indentures, guarantees, loans or stock option plan;
(v) contract for the employment of any officercredit agreements, individual employee security agreements or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture promissory notes relating to the borrowing of money money, extension of credit or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation other indebtedness for borrowed money by the Seller or otherwise;Media Sub.
(ixb) lease Except as would not reasonably be expected to have a Material Adverse Effect, each Material Contract is a valid and binding obligation of the Seller or agreement under which it Media Sub and, to the Knowledge of the Seller, of each other party thereto, and is lessee ofin full force and effect. There exists no material breach or material default (or event that with or without notice or the lapse of time, or holds both, would constitute a material breach or operates any propertymaterial default) on the part of the Seller, real or personalMedia Sub, owned by their Affiliates or, to the Knowledge of the Seller, on the part of any other party, for which party thereto under any Material Contract. To the annual rental exceeds $3,000, other than as described in Section 3.12 Knowledge of the Disclosure Schedule;
(x) lease Seller, no event has occurred that with or agreement under which it is lessor ofwithout notice or lapse of time would permit termination, modification, or permits acceleration, under any third party Material Contract. None of the Seller, Media Sub, their Affiliates or, to hold or operatethe Knowledge of the Seller, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services thereto has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than repudiated any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation material provision of any type previously paid Material Contract. With respect to all Material Contracts that obligate the Seller or granted Media Sub to meet volume, service level or to be paid similar requirements, the Seller or granted to or Media Sub, as applicable, has met all such requirements at the maximum levels required by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicessuch Material Contracts.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.16 Schedule 2.10(a) contains a complete and accurate list of the Disclosure Schedule lists all contracts, agreements, commitments, instruments and obligations (whether written or oral, contingent or otherwise) of Seller of or concerning the following agreements, whether oral or written, to which matters (the Company is a party and which are currently in effect:"Seller Agreements"):
(i) collective bargaining agreement the employment or contract with engagement of any labor unionKey Employee;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of any arrangement that could reasonably be anticipated to have a material adverse effect on the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder)Rights and Assets;
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating material arrangement related to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty Rights and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset Assets not in the ordinary course of business or exceeding $10,000business;
(xxb) contract Seller has delivered to Buyer true and complete copies of all of its Seller Agreements. Except as indicated on Schedule 2.10(b), the Seller Agreements are valid and effective in accordance with their terms, and there is not under any affiliate which in of such Seller Agreements (i) any way relates existing or claimed default by Seller or event which, with the notice or lapse of time, or both, would constitute a material default by Seller or (ii) to the Company (knowledge of Seller, any existing or claimed default by any other than for employment party or event which with notice or lapse of time, or both, would constitute a material default by any such party. Except as indicated on customary termsSchedule 2.10(b);
(xxi) contract under which a change in control , the continuation, validity and effectiveness of the Company terminates Seller Agreements will not be affected by the Acquisition and the Acquisition will not result in a breach of or modifies default under, or require the consent of any other party to, any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributorSeller Agreements. There is no actual or, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business knowledge of Seller, threatened termination, cancellation or limitation of any Seller Agreements that would have a material adverse effect on the Company Rights and Assets. To the knowledge of Seller, there is no pending or threatened bankruptcy, insolvency or similar proceeding with respect the Seller or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicesSeller Agreements.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.16 of Except for the Disclosure Schedule lists the following agreementsListed Contracts and except for this Agreement, there are no agreements or contracts, whether oral or writtennot in writing, to which the Company Seller is a party and which are currently in effect:
that may: (i) collective bargaining agreement or contract with any labor union;
involve obligations (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money contingent or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures Seller in excess of $10,000;
; (xixii) agreement for involve the sale license of any capital asset not Intellectual Property to or from Seller; (iii) contain provisions restricting and/or affecting the development, distribution or sales of Seller or the Business' products or services; (iv) relate to any aspect of the Business and in which any person who was or is a manager, officer or director of Seller (or any person, firm partnership, trust or corporation affiliated with any such persons) has a material interest; (v) involve any joint venture or partnership contract or arrangement or any other agreement which has involved or is expected to involve a sharing of profits with other persons; (vi) involve any agreement containing covenants purporting to limit the ordinary course freedom of Seller to compete in any line of business or exceeding $10,000;geographic area or involve the distribution of Seller' or the Business' products or services; (vii) involve any agreement of indemnification regarding Seller and/or the Business; (viii) establish any powers of attorney regarding Seller and/or the Business, (ix) obligate Seller for the repayment of borrowed money; or (x) involve any other agreement, contract or commitment which is material to Seller as a whole.
(xxb) contract with Seller has performed all obligations to be performed by it under the terms of each Listed Contract, and are not in default thereunder. No event or omission has occurred that but for the giving of notice or lapse of time or both would constitute a default by Seller under any affiliate which such Listed Contract. Each such Listed Contract is valid and binding on all parties thereto and in any way relates full force and effect, and to the Company (Seller' knowledge, no other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies party to any of the Company's Listed Contracts is in default thereunder. Seller has received no written or unwritten notice of any default, cancellation, or termination in connection with any such Listed Contract. Each Listed Contract, and all rights and interests of Seller thereunder, shall have been assigned to Purchaser at the Closing, and no consents or obligations;
(xxii) contract for the distribution approvals of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into third parties are required in the ordinary course of business consistent connection with past practicessuch assignments.
Appears in 1 contract
Contracts and Commitments. Section 3.10 of the Company Disclosure ------------------------- Schedule, contains a list of, and true, correct and complete copies (or descriptions thereof, if oral) have been delivered to Merger Partner of the following contracts and agreements (other than retransmission consent agreements, true, correct and complete copies of which shall be delivered by Company to Merger Partner within five (5) days of the date hereof) (each a "Material Contract"):
(a) Section 3.16 all programming and network affiliation agreements of Company or any Company Subsidiary or that relate to the Disclosure Schedule lists the following agreements, whether oral operations of Company or written, any Company Subsidiary;
(b) all contracts or agreements that provide for employment of a Person by Company or any Company Subsidiary;
(c) all leases of real property or personal property to which the Company or any Company Subsidiary is a party and which are currently in effect:party;
(d) all contracts evidencing, creating or relating to any indebtedness of Company or any Company Subsidiary;
(e) all contracts or agreements evidencing guarantees of any nature of Company or any Company Subsidiary of any indebtedness, liabilities or obligations of any Person;
(f) any contracts or agreements prohibiting, limiting or otherwise restricting the activities of, or competition by, Company or any Company Subsidiary or otherwise imposing any significant non-monetary obligation or responsibility on Company or any Company Subsidiary; and
(g) any other contract or agreement that (i) collective bargaining agreement provides for payments in excess of $25,000 for any individual contract or contract with any labor union;
agreement; provided that undisclosed contracts or agreements involving payments of less than $25,000 do not in the aggregate involve payments exceeding $250,000; or (ii) bonus, pension, profit sharing, retirement requires performance by Company or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it Company Subsidiary of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six time extending beyond twelve (12) months from the date Effective Time or dates thereof, is not terminable by it on 30 Company or any Company Subsidiary without penalty upon ninety (thirty90) days' days or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed notice. Except as set forth in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control 3.10 of the Company terminates or modifies Disclosure Schedule: (i) all Material Contracts are in full force and effect and constitute legal, valid and binding obligations, enforceable in accordance with their terms (such enforceability subject to the Enforceability Exceptions) of Company and any Company Subsidiary as applicable, and, to the Knowledge of the Company's rights , the other parties thereto; (ii) neither Company nor any Company Subsidiary, nor, to the Knowledge of Company, any other party to any Material Contract, is in default under or obligations;
in violation of, in any material respect, any Material Contract (xxii) contract for nor does there exist any event or condition related to Company or any Company Subsidiary or, to the distribution Knowledge of Company, any other event or condition, which upon the passage of time or the giving of notice or both would cause such a default under or violation of such Material Contract by Company or any Company Subsidiary or, to the knowledge of the Company's products (including , any distributor, sales and original equipment manufacturer contractsother party to any Material Contract); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practices.
Appears in 1 contract
Sources: Merger Agreement (Media General Inc)
Contracts and Commitments. (a) Section 3.16 Set forth in the Company Disclosure --------------------------------------- Letter is a complete and accurate list of all of the Disclosure Schedule lists the following agreementscontracts (written or oral), whether oral plans, undertakings, commitments or written, agreements ("Company ------- Contracts") to which the Company or any of its Subsidiaries is a party and or by --------- which are currently in effectany of them is bound as of the date of this Agreement:
(ia) collective bargaining agreement each distribution, supply, inventory purchase, franchise, license, joint development, sales, agency or advertising contract with any labor union;
(ii) bonus, pension, profit sharing, retirement involving annual expenditures or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is liabilities in excess of $1,000 200,000 which is not cancelable (without material penalty, cost or other than purchase orders entered into in the ordinary course of business consistent with past practices)liability) within one year;
(xiib) contract each promissory note, loan, agreement, indenture, evidence of indebtedness or group of related contracts with the same party other instrument providing for the sale lending of products money, whether as borrower, lender or services under which the undelivered balance of such products or services has a sales price guarantor, in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices)100,000;
(xiiic) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereofeach contract, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebateslease, allowancesagreement, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties instrument or other compensation by arrangement containing any covenant limiting the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control freedom of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material its subsidiaries to engage in the business of the Company or compete with any person;
(d) each joint venture or partnership agreement that is material to the transactions contemplated hereby Company and its Subsidiaries taken as a whole; and
(e) any contract that would constitute a "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC). True and complete copies of the written Company Contracts, as amended to date, that would be required to be filed as exhibits to the Company's Form 10-K if such Form 10-K were being filed on this date, that have not been filed prior to the date hereof as exhibits to the SEC Reports have been delivered or made available to Parent. Each Company Contract is valid and binding on the Company, and any Subsidiary of the Company which was not entered into is a party thereto and, to the knowledge of the Company, each other party thereto and is in full force and effect, and the Company and its Subsidiaries have performed and complied with all obligations required to be performed or complied with by them under each Company Contract, except in each case as would not, individually or in the ordinary course of business consistent with past practicesaggregate, have or reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 3.7 hereto includes a true, correct and complete list of all material contracts, agreements, commitments, indentures, mortgages, notes, bonds, licenses, real and personal property leases and other obligations to which Seller is a party, by which Seller or its assets or properties are bound or may be affected or which otherwise relate to the Business (the "Material Agreements"). Without limiting the generality of the foregoing, the term Material Agreement includes: (a) Section 3.16 of the Disclosure Schedule lists the following agreementsany lease or license with respect to any Assets, whether oral Seller is tenant, landlord, licensor or writtenlicensee thereunder; (b) any agreement, to which the Company is a party and which are currently in effect:
(i) collective bargaining agreement or contract with any labor union;
(ii) bonuscontract, pension, profit sharing, retirement indenture or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture instrument relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it guarantee of any obligation for borrowed money or otherwise;
the deferred payment of the purchase price of any Assets; (ixc) lease any agreement concerning a partnership or joint venture; (d) any agreements between Seller on the one hand and any of its shareholders, officers, directors or employees on the other; (e) any agreement under which it is lessee ofrelating to confidentiality or noncompetition; (f) any preferential purchase right, right of first refusal or holds similar agreement; (g) any agreement entered into outside of the ordinary course of business; or operates any property, real or personal, owned by (h) any other party, for which the annual rental exceeds $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
agreement (x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products agreements) which could involve expenditures (in cash or services under which the undelivered balance of such products or services is in kind) by Seller in excess of $1,000 (other than purchase orders 2,500.00 per year. True and complete copies of all of the Material Agreements have been delivered by Seller to Buyer. Each of the Material Agreements listed in SCHEDULE 3.7 are valid, binding and enforceable in accordance with their respective terms and are in full force and effect and were entered into in the ordinary course of business consistent on an "arms length" basis. No part of Seller's rights or benefits under any Material Agreement has been assigned, transferred, or in any way encumbered. Seller is not in breach of nor has Seller defaulted under any of the Material Agreements and no occurrence or circumstance exists which constitutes (with past practices);
or without the giving of notice or the passage of time or both) a breach or default by Seller under any Material Agreement. To Seller's knowledge, the other parties to the Material Agreements are not in default thereunder and no occurrence or circumstance exists which constitutes or would constitute (xiiwith or without the giving of notice or the passage of time or both) contract a breach or group default by the other party thereunder. Except as set forth on SCHEDULE 3.7 hereto, and except for contracts relating to Assumed Obligations set forth on SCHEDULE 1.3 hereto and the Assumed Leases listed on SCHEDULE 1.4 hereto, neither Seller nor any of related contracts with the same party for Assets are bound by or subject to any contract, agreement, commitment, indenture, mortgage, note, bond, license, real or personal property lease or other obligation which on the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 Closing Date cannot be terminated upon thirty (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty30) days' written notice by Seller or less notice Buyer without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicesobligation being incurred upon such termination.
Appears in 1 contract
Sources: Asset Purchase Agreement (Outsource International Inc)
Contracts and Commitments. (a) Section 3.16 of the Disclosure Schedule lists the following agreements, whether oral There are no purchase contracts or written, to commitments under which the Company is a party and which are currently in effect:
(i) collective bargaining agreement or contract with any labor union;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating required to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices)25,000;
(xiib) contract There are no outstanding sales contracts, commitments, or group proposals of related contracts with the same party Company that call for the sale payment or receipt of products more than $25,000 in any fiscal quarter or services under which the undelivered balance of such products or services has a sales price Company believes will result in any loss in excess of $2,000 (other than purchase orders entered into in 25,000 to the ordinary course of business consistent with past practices)Company upon full completion or performance thereof;
(xiiic) contract or group of related The Company has no outstanding contracts with the same party (other than any contract directors, officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors, or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, dealers that are not terminable cancelable by it on 30 notice of not longer than thirty (thirty30) days' days and without liability, penalty, or less notice without penalty and involving more than $5,000premium or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(xivd) contract or group of related contracts with The Company is not in default, nor to the same party calling Company's Knowledge is there any basis for any rebatesvalid claim of default, allowances, discounts, performance money under any material contract made or compensation of any type previously paid or granted or to be paid or granted to or obligation owed by the Companyit;
(xve) The Company is not restricted by any contract to which prohibits the Company it is a party from freely engaging in carrying on its business anywhere in the world;
(xvif) franchise agreementThe Company is not under any material liability or obligation with respect to the return of inventory or merchandise in the possession of wholesalers, distributors, retailers, or other customers;
(xviig) license agreement The Company has no obligations for borrowed money, including guarantees of or agreement providing for the payment or receipt agreements to acquire any such obligation of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Scheduleothers;
(xviiih) contract or commitment for capital expenditures in excess of $10,000The Company does not have any outstanding loan to any person other than to the Company;
(xixi) agreement for The Company does not have any power of attorney outstanding or any obligations or liabilities (whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, due or to become due or otherwise), as guarantor, surety, co-signer, endorser, co-maker or indemnitor in respect of the sale obligation of any capital asset not in the ordinary course of business person, corporation, partnership, joint venture, association, organization, or exceeding $10,000other entity;
(xxj) contract with None of the officers, directors or stockholders of the Company has any affiliate which interest in any way relates property, real or personal, tangible or intangible, including without limitation the rights relating to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributorIntellectual Property, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which that is either material to the conduct of the business of the Company; and
(k) The Company does not have any agreements, contracts, commitments, or the transactions contemplated hereby restrictions that are material to its business, financial condition, working capital, assets, liabilities (whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, due or to become due or otherwise), reserves or operations or which was not entered into in require the ordinary course making of business consistent with past practicesany charitable contribution.
Appears in 1 contract
Sources: Merger Agreement (Emulex Corp /De/)
Contracts and Commitments. Except as set forth in Schedule 4.12 of the CCS Disclosure Schedule:
(a) Section 3.16 Neither CCS nor any of the Disclosure Schedule lists the following its Subsidiaries has any agreements, whether oral contracts, or writtencommitments, to written or oral, which the Company is a party and which are currently in effect:
involve (i) collective bargaining agreement the performance of services by CCS or contract with any labor union;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is its Subsidiaries in excess of $1,000 150,000 anticipated for fiscal year 1999 or (other than purchase orders entered into in ii) the ordinary course performance of business consistent with past practices);
(xii) contract services or group delivery of related contracts with the same party for the sale of products goods to CCS or services under which the undelivered balance of such products or services has a sales price its Subsidiaries in excess of $2,000 150,000 anticipated for fiscal year 1999.
(other than purchase orders entered into in the ordinary course b) Neither CCS nor any of business consistent with past practices)its Subsidiaries has any collective bargaining or union contracts or agreements;
(xiiic) contract Neither CCS nor any of its Subsidiaries is restricted by any agreement or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months commitment from the date or dates thereof, not terminable by it carrying on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in its business as currently conducted anywhere in the world;
(xvid) franchise agreementNeither CCS nor any of its Subsidiaries has any material obligations for Indebtedness;
(xviie) license Neither CCS nor any of its Subsidiaries is a party to any partnership or joint venture agreement whether or not a separate legal entity is created thereby or any contract or agreement providing for relating to the payment acquisition or receipt disposition of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 any portion of the Disclosure Scheduleits business;
(xviiif) Neither CCS nor any of its Subsidiaries is in material breach or default, under any contract referred to in Schedule 4.12, and there exists no event or condition (other than the entering into of this Agreement and the consummation of the transactions contemplated thereby) which (whether with or without notice, lapse of time, or both) would constitute a material default by CCS or any Subsidiary thereunder, give rise to a right to accelerate, modify or terminate any material provision thereof or give rise to any material Encumbrance on their respective material Properties or assets or a right to any material, additional or guaranteed payments; and to the knowledge of CCS or any of its Subsidiaries, no other party to any such contract or commitment for capital expenditures agreement is in excess of $10,000material breach or default thereof;
(xixg) each contract and agreement for the sale referred to in Schedule 4.12 and each contract and agreement relating to a CCS License Right is valid and in full force and effect and constitutes a legal, valid and binding obligation of CCS or any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates its Subsidiaries, and, to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control knowledge of the Company terminates CCS or modifies any of its Subsidiaries, the Company's rights other parties thereto, enforceable in accordance with its terms, accurate and complete copies thereof, together with all amendments thereto, have been heretofore delivered or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material made available to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicesTravCorps.
Appears in 1 contract
Sources: Merger Agreement (Cross Country Inc)
Contracts and Commitments. SCHEDULE 1.1 identifies all contracts and agreements to which Seller and each Affiliate is a party, or by which it is bound that are material to the Business or the Transferred Assets. Except for contracts, agreements, and commitments identified on SCHEDULE 1.1, 2.1, 4.9, 4.16, 4.17 AND 4.19(C), Neither Seller nor any Affiliate is a party to or bound by any oral or written:
(a) Section 3.16 of the Disclosure Schedule lists the following agreementsContract, whether oral agreement, or writtencommitment for employment or personal services or any severance agreement that is not terminable, to which the Company is a party and which are currently in effect:
(i) collective bargaining agreement without liability or contract with any labor unionexpense, by Seller on 30 days' or less notice;
(iib) bonusDealer, pensiondistributor, profit sharingsales agency, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality brokerage agreement;
(viic) agreement Material contract, agreement, or indenture commitment relating to the borrowing of money real or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Companypersonal property;
(viiid) guaranty by it of any obligation for borrowed money or otherwise;
(ix) lease or agreement under which it is lessee ofContract, or holds or operates any propertyagreement, real or personal, owned by any other party, for which the annual rental exceeds $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,0005,000.00 for any one project or $10,000.00 in the aggregate;
(xixe) agreement Contract, agreement, or commitment for the purchase or sale of any capital asset materials or supplies or the performance of services that involves more than $10,000.00 or will not be fulfilled within 30 days from the date of this Agreement;
(f) Contract not made in the ordinary course of business that is material to the Business or exceeding $10,000the Transferred Assets;
(xxg) contract with Rebate arrangement or other similar agreement given to any affiliate which in customer or received from any way relates to the Company (other than for employment on customary terms)supplier;
(xxih) Consignment or similar contract under which with either a change in control of the Company terminates supplier or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts)a customer; or
(xxiiii) Any other agreement which is either material contract. Seller and each Affiliate has in all material respects performed all obligations required to be performed by it prior to the business date hereof, and neither Seller, nor any Affiliate is in default under any contract, agreement, or commitment pertaining to the Business or the Transferred Assets to which any of them is a party. Neither Seller nor any Affiliate has received any notice of default under any such contract, agreement, or commitment, nor to the knowledge of any Seller has any event occurred which with notice or lapse of time or both would constitute a default thereunder. None of such contracts, agreements, or commitments is to the Seller's knowledge subject to any impending cancellation or breach. Neither Seller nor any Affiliate is bound by any commitments for the performance of services or delivery of products in excess of its ability prior to Closing to provide such services or deliver such products during the time available to satisfy such commitments; all outstanding commitments for the performance of services or delivery of products were made on a basis calculated to produce a profit as part of the Company or Seller's overall business operation under the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicescircumstances prevailing when such commitments were made.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.16 of the Disclosure Schedule lists the following agreements, whether oral or written, to which the Company is a party and which are currently in effect:
(i) collective bargaining agreement Sellers have no contracts or contract commitments with respect to either purchases or sales by the Sellers involving a consideration in excess of $5,000 individually or $10,000 in the aggregate which is not cancelable by the Sellers without penalty upon 30 days notice other than contracts made in the ordinary course of business. No purchase commitments by the Sellers are in excess of the normal, ordinary and usual requirements of their business or, to the best of their knowledge, at any labor union;price unreasonably high or known to or believed to be excessive.
(ii) bonusSchedule 2(e)(ii) identifies all employees, pensionconsultants and others who have received remuneration from the Sellers in connection with services rendered within the year prior to the execution of this Agreement; including such individuals date of hire, profit sharingrate of remuneration, retirement title and responsibility. Sellers have made no payments or commissions or provided any benefits to others in connection with any sales or proposed sales by the Sellers, except to employees of the Sellers or sales representatives regularly engaged by the Sellers to promote the sale of their products and services. To the best knowledge of the Sellers and Stockholder, none of such employees or sales representatives are employed or engaged as a consultant, advisor, purchasing representative, employee, officer, director or otherwise, whether paid or unpaid, by any customer or proposed customer or by any government or governmental agency or body of any kind and description or by any other form of deferred compensation planperson, firm or corporation or hold political office or position (whether or not paid) with any government or governmental agency or body or receive remuneration for services rendered from any person, firm or corporation other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);Sellers.
(iii) hospitalization insurance Except as disclosed on Schedule 2(e)(ii), there are no contracts, agreements or commitments or business arrangements with or to, and there have not been any sales to, purchases from or other welfare benefit plan business arrangements with, any current or practiceformer principal stockholders, whether formal directors or informal, other than as described in Section 3.21 officers of the Disclosure Schedule Sellers (or excluded by Section 3.21 from inclusion thereunder);any spouse or relative of any of the foregoing) and neither Sellers nor Stockholder have any interest in any party with which the Sellers do business.
(iv) stock Schedule 2(e)(iv) identifies all unexpired material contracts to which Sellers are bound. Except as set forth in Schedule 2(e)(iv), Sellers are not a party to any agreement, contract or commitment (A) granting any person any preferential rights to purchase any of its assets or stock properties; (B) which continues over a period (including any periods covered by an option plan;
to renew by any party) of more than one year from its date; (vC) contract with any distributor, dealer, sales agency or manufacturer's representative or with any sales, advertising or public relations agency; (D) for capital improvements or expenditures or the employment construction of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
fixed assets; (viE) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaginga line of credit, pledging including, without limitation, any indenture, mortgage, note, loan or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) lease or agreement under which it is lessee ofcredit agreement, or holds or operates any property, real or personal, owned by any other party, for which the annual rental exceeds $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group obligation or to the direct or indirect guaranty or assumption by the Sellers of related contracts obligations of others, including any arrangements which have the economic effect although not the legal form of a guaranty; (F) with the same party for the purchase respect to security interests, liens, pledges, charges, encumbrances, options, rights of products first refusal, mortgages, indentures or services under which the undelivered balance of such products or services is in excess of $1,000 security agreements; (other than purchase orders entered into G) not made in the ordinary course of business; or (H) pursuant to which its right to compete with any corporation, business consistent with past practices);
(xii) contract trust, firm, individual, partnership, joint venture, entity or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into organization, in the ordinary course conduct of business consistent its business, is restrained or restricted for any reason or in any way; except, with past practicesrespect to clauses (B);
, (xiiiD) contract and (G), agreements, contracts or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving commitments obligating Sellers to pay more than $5,000;
(xiv) contract 5,000 individually or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere $10,000 in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicesaggregate.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.16 of the Disclosure Schedule 2.7 hereto lists the following agreements, whether oral or written, to which the Company Nile is a party and party, which are currently in effect:
, and which relate to the operation of Nile’s business: (i) collective bargaining agreement or contract with any labor union;
; (ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
; (iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
; (iv) stock purchase or stock option plan;
; (v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
; (vi) confidentiality agreement;
contract, agreement or understanding relating to the voting of Nile Common Stock or the election of directors of Nile; (vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
Nile; (viii) guaranty by it of any obligation for borrowed money or otherwise;
; (ix) lease or agreement under which it Nile is lessee of, or holds or operates any property, real or personal, owned by any other party, for which the annual rental exceeds $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
10,000; (x) lease or agreement under which it Nile is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
10,000; (xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company Nile from freely engaging in business anywhere in the world;
; (xvi) franchise agreement;
(xviixii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company Nile in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
held by Nile; (xviiixiii) contract or commitment for capital expenditures in excess of $10,000;
; (xixxiv) agreement for the sale of any capital asset not in the ordinary course of business asset; or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiiixvi) other agreement which is either material to the Nile’s business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent business.
(b) To Nile’s knowledge, (i) Nile has performed all obligations required to be performed by it in connection with past practicesthe contracts or commitments required to be disclosed in Schedule 2.7 hereto and is not in receipt of any claim of default under any contract or commitment required to be disclosed under such caption; (ii) Nile has no present expectation or intention of not fully performing any material obligation pursuant to any contract or commitment required to be disclosed under such caption; and (iii) Nile has no knowledge of any breach or anticipated breach by any other party to any contract or commitment required to be disclosed under such caption.
Appears in 1 contract
Sources: Merger Agreement (Smi Products Inc)
Contracts and Commitments. Except as set forth on Schedule 3.15 of the Disclosure Schedule, with respect to Seller, the Company and the Subsidiaries taken as a whole:
(a) Section 3.16 There are no contracts or commitments under which Seller, the Company or any Subsidiary is required to pay in excess of $100,000 or which extend for a term of more than one year after the Disclosure Schedule lists Closing;
(b) There are no outstanding sales contracts, commitments, or proposals of Seller, the following agreementsCompany or any Subsidiary that call for the payment or receipt of more than $100,000 in any fiscal quarter or which Seller, whether oral the Company or writtenany Subsidiary believes will result in any loss to Seller, the Company or any Subsidiary, as the case may be, upon full completion or performance thereof;
(c) There are no outstanding contracts with managers, officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors, or dealers or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(d) Seller, the Company and each Subsidiary are not in default, nor to the Company’s Knowledge is there any basis for any valid claim of default, under any contract made or obligation owed by Seller, the Company or any Subsidiary;
(e) Seller, the Company and each Subsidiary are not restricted by any contract to which the Company is they are individually a party and which from carrying on their respective businesses anywhere in the world;
(f) There are currently no material liabilities or obligations with respect to the return of inventory or merchandise in effect:the possession of wholesalers, distributors, retailers, or other customers;
(g) There are no obligations for borrowed money, including guarantees of or agreements to acquire any such obligation of others;
(h) There are no outstanding loans to any Person;
(i) collective bargaining agreement There is no power of attorney outstanding or contract with any labor unionobligations or liabilities (whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, due or to become due or otherwise), as guarantor, surety, co-signer, endorser, co-maker or indemnitor in respect of the obligation of any Person;
(iij) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 None of the Disclosure Schedule (employees, officers, managers, directors or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance equity owners of Seller, the Company or other welfare benefit plan or practice, whether formal or informal, other than as described the Subsidiaries have any interest in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) lease or agreement under which it is lessee of, or holds or operates any property, real or personal, owned by any other partytangible or intangible, for which including without limitation the annual rental exceeds $3,000rights relating to the Intellectual Property, other than as described that is used in Section 3.12 the conduct of the Disclosure ScheduleBusiness;
(xk) lease or agreement There are no outstanding contracts under which it the amount payable is lessor ofdependent upon the revenue, income or permits any third party to hold or operateother similar measure of Seller, the Company, any property, real Subsidiary or personal, for which the annual rental exceeds $3,000 any other than as described in Section 3.12 of the Disclosure SchedulePerson;
(xil) contract There are no outstanding contracts, licenses, leases, agreements or group other arrangements with respect to any Owned Property;
(m) There are no outstanding contracts, agreements, arrangements or understandings relating to or involving any franchise, partnership, joint venture or other similar arrangement;
(n) There are no outstanding contracts, agreements, arrangements or understandings with respect to mergers or acquisitions, sales of related contracts with the same party for the purchase securities or sales of products or services under which the undelivered balance of such products or services is in excess of $1,000 assets (other than purchase orders entered into sales of assets in the ordinary course of business consistent with past practicespractice), or investments by Seller, the Company or any Subsidiary including any such contracts involving earnouts or seller financing;
(xiio) contract There are no outstanding contracts, agreements, arrangements or group of related contracts understandings with the same party for the sale of products governmental agencies, departments or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices)authorities;
(xiiip) contract There are no contracts, agreements, arrangements or group understandings with any officer, employee, director, agent, manager, consultant or advisor of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereofSeller, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in or any of the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement Subsidiaries providing for the acceleration of vesting or payment or receipt of royalties or other compensation by any amounts of the vesting of any additional rights upon the occurrence of a change of control of Seller, the Company in connection with or any Subsidiary or upon the intellectual property rights occurrence of any of the transactions contemplated by this Agreement or the Unitholders Agreement; and
(q) There are no agreements, contracts, commitments, or restrictions that are material to the business, financial condition, working capital, assets, liabilities (whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, due or to become due or otherwise), reserves or operations of Seller, the Company or any of the Subsidiaries or which require the making of any charitable contribution. All of the contracts listed in Section 3.17 Schedule 3.15 of the Disclosure Schedule;
, including all amendments or modifications thereto, all leases listed on Schedule 3.20 of the Disclosure Schedule and all License Agreements are sometimes collectively referred to as “Material Contracts.” The Company has furnished to Purchaser true and correct copies of all Material Contracts (xviiior descriptions thereof, in the case of oral contracts). Each Material Contract (or description) contract sets forth the entire agreement and understanding between Seller, the Company, the Subsidiaries and the other parties thereto. Each Material Contract is valid, binding and in full force and effect. There is no event or commitment for capital expenditures in excess of $10,000;
(xix) agreement for condition which has occurred or exists which constitutes or which, with or without notice, the sale happening of any capital asset not in event and/or the ordinary course passage of business time, could constitute a default or exceeding $10,000;
(xx) contract with breach under any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributorsuch Material Contract by Seller, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or any Subsidiary or, to the transactions contemplated hereby Company’s Knowledge, any other party thereto, or which was could cause the acceleration of any obligation or loss of any rights of any party thereto or give rise to any right of termination or cancellation thereof. The Company has no reason to believe that the parties to any Material Contract will not entered into fulfill their obligations thereunder in the ordinary course of business consistent with past practicesall material respects.
Appears in 1 contract
Sources: Securities Purchase Agreement (FMC Technologies Inc)
Contracts and Commitments. (i) Except as, expressly contemplated by this Agreement or as set forth on the attached “Contracts Schedule” or the attached “Employee Benefits Schedule,” the Company is not a party to any written or oral:
(a) Section 3.16 of the Disclosure Schedule lists the following agreementspension, whether oral profit sharing, stock option, warrant, stock purchase or writtenother plan or arrangement providing for deferred or other compensation to directors, to which the Company is a party and which are currently in effect:
(i) officers, employees or consultants or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(vb) contract for the employment of any officer, individual employee or other person Person on a full-time time, part-time, consulting or consulting other basis or contract relating to severance pay for any such personloans to officers, directors 6r Affiliates;
(vic) confidentiality agreementcontract under which the Company has advanced or loaned any other Person amounts in the aggregate exceeding $5,000;
(viid) agreement or indenture relating to the borrowing of borrowed money or to other indebtedness or the mortgaging, pledging or otherwise placing placing, a lien on any material asset or material group of the assets of the Company;
(viiie) guaranty by it guarantee of any obligation for borrowed money or otherwiseobligation;
(ixf) lease or agreement under which it the Company is lessee of, of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental exceeds payments do not exceed $3,000, other than as described in Section 3.12 of the Disclosure Schedule5,000;
(xg) lease or agreement under which it the Company is lessor of, of or permits any third party to hold or operate, operate any property, real or personal, for which owned or controlled by the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure ScheduleCompany;
(xih) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with affiliated parties the same party for the sale performance of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures involves consideration in excess of $10,000;
(xixi) assignment, license, indemnification or agreement for the sale of with respect to any capital asset not in the ordinary course of business intangible property (including without limitation, any Intellectual Property Rights or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary termsconfidential information);
(xxij) contract under which a change in control of the Company terminates warranty agreement with respect to its services rendered or modifies any of the Company's rights or obligationsits products sold;
(xxiik) agreement under which it has granted any Person any registration rights (including, without limitation, demand or piggyback registration rights);
(l) sales, distribution or franchise agreement;
(m) agreement with a term of more than six months which is not terminable by the Company upon less than 30 days’ notice without penalty;
(n) contract for or agreement prohibiting it from freely engaging in any business or competing anywhere in the distribution of the Company's products world;
(including any distributoro) joint venture, sales and original equipment manufacturer contracts)strategic alliance, collaboration or similar agreements; or
(xxiiip) any other agreement which is either material to the its operations and business prospects.
(ii) All of the contracts, agreements and instruments required to be set forth on the Contracts Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge against each other party thereto in accordance with their respective terms. The Company has performed all material obligations required to be performed by it under the contracts, agreements and instruments required to be listed on the Contracts Schedule and is not in default under or in breach of nor in receipt of any claim of default or breach under any material contract, agreement or instrument to which the Company is subject; no event has occurred which with the passage of time or the transactions contemplated hereby giving of notice or both would result in a default, breach or event of noncompliance under any contract, agreement or instrument to which was the Company is subject; the Company has no present expectation or intention of not entered into performing all such obligations in all material respects; and the ordinary course Company has no knowledge of business consistent any breach or anticipated breach by the other parties to any contract or commitment to which it is subject.
(iii) Upon request, the Purchasers will have been supplied with past practicesa true and correct copy of each of the written contracts and an accurate written description of each of the oral contracts which are required to be listed on the Contracts Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Series C 2 Preferred Stock Purchase Agreement (Nanosphere Inc)
Contracts and Commitments. (a) Section 3.16 Neither ARI nor any of the Disclosure Schedule lists the following agreements, whether oral or written, to which the Company its Subsidiaries is a party and which are currently in effector subject to:
(i) Any union contract or collective bargaining agreement or any employment contract or arrangement, written or oral, providing for future compensation with any labor union;
(ii) bonusofficer, pensionconsultant, profit sharing, retirement director or other form of deferred compensation planemployee which is not terminable by it or its Subsidiary on 30 days' notice or less without penalty or obligation to make payments related to such termination, other than as described (A) (in Section 3.21 the case of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, employees other than executive officers) such severance agreements as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 are not different from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating standard arrangements offered to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into employees generally in the ordinary course of business consistent with ARI's past practices), a description of which is set forth in the ARI Disclosure Schedule and (B) such agreements as may be imposed or implied by law;
(xiiii) contract Any plans, contracts or group of related contracts with the same party for the sale of products arrangements, written or services under oral, which the undelivered balance of such products or services has a sales price collectively require aggregate payments by ARI in excess of $2,000 10,000 for bonuses, pensions, deferred compensation, severance pay or benefits, retirement payments, profit-sharing, or the like;
(iii) Any joint marketing, joint development or joint venture contract or arrangement or any other than agreement which has involved or is expected to involve a sharing of profits with other persons;
(iv) Any existing OEM agreement, distribution agreement, volume purchase orders entered into agreement, or other similar agreement in which the annual amount involved in 1998 exceeded, or is expected to exceed in 1999 or any subsequent year, $10,000 or pursuant to which ARI has granted or received most favored customer provisions or exclusive marketing rights related to any product, group of products or territory;
(v) Any lease for real or personal property pursuant to which the amount of payments which ARI is required to make on an annual basis exceeds $10,000;
(vi) Any agreement, contract, mortgage, indenture, lease, instrument, license, franchise, permit, concession, arrangement, commitment or authorization which may be, by its terms, terminated or breached by reason of the execution of this Agreement, the Merger Agreement or any ARI Ancillary Agreement, the closing of the Merger, or the consummation of the transactions contemplated hereby or thereby, including the Subsequent Merger;
(vii) Except for trade indebtedness incurred in the ordinary course of business consistent with past practices)business, any instrument evidencing or related in any way to indebtedness in excess of $10,000 incurred in the acquisition of companies or other entities or indebtedness in excess of $10,000 for borrowed money by way of direct loan, sale of debt securities, purchase money obligation, conditional sale, guarantee, indemnification or otherwise;
(xiiiviii) contract Any license agreement, either as licensor or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000licensee;
(xivix) Any contract containing covenants purporting to limit ARI's freedom or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation that of any type previously paid of its Subsidiaries to compete in any line of business or granted in any geographic area or to be paid or granted to or by the Companywith any third party;
(xvx) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise Any agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) , contract or commitment for relating to capital expenditures and involving future obligations in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiiixi) Any other agreement agreement, contract or commitment which is either material to ARI's Business.
(b) Each agreement, contract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license and commitment listed in the business ARI Disclosure Schedule is valid and binding on ARI or its Subsidiaries, as applicable, and is in full force and effect, and neither ARI nor any of its Subsidiaries, nor to the knowledge of ARI, any other party thereto, has breached any material provision of, or is in default under the terms of, any such agreement, contract, mortgage, indenture, plan, lease, instrument, permit, concession, franchise, arrangement, license or commitment.
(c) None of the Company 20 largest customers of ARI or its Subsidiaries during the twelve months ended November 30, 1999 (determined on the basis of both revenues and bookings during such period) has materially reduced or terminated, or has notified ARI in writing that it intends to reduce or terminate, the amount of its business with ARI or any of its Subsidiaries.
(d) There is no agreement, judgment, injunction, order or decree binding upon ARI or its Subsidiaries which has or could reasonably be expected to have the effect of prohibiting or materially impairing any material current business practice of ARI or its Subsidiaries, any acquisition of material property by ARI or its Subsidiaries or the transactions contemplated hereby or which was not entered into in the ordinary course conduct of business consistent with past practicesby ARI or its Subsidiaries as currently conducted or as proposed to be conducted by ARI or its Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Igo Corp)
Contracts and Commitments. (a) Except for any Leases or guarantees entered into in connection with any Leases, or as set forth on the Contracts and Commitments Schedule, and except for agreements entered into by any Group Company after the date hereof in accordance with Section 3.16 of the Disclosure Schedule lists the following agreements8.01, whether oral or written, to which the no Group Company is a party and which are currently in effectto any written:
(i) collective bargaining agreement or contract with any labor union;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement material Contract or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien material Lien on any material portion of the assets of the CompanyGroup Companies;
(viiiii) material guaranty by it of any obligation for borrowed money or otherwiseother material guaranty;
(ixiii) lease or agreement Contract under which it is lessee oflessee, or holds or operates any property, real or personal, personal property owned by any other party, for which the annual rental exceeds $3,000, other than as described in Section 3.12 of 1,000,000 (excluding the Disclosure ScheduleLeases);
(xiv) Contract that is a settlement, conciliation or similar agreement with any Governmental Body pursuant to which any Group Company will have any material outstanding obligations after the date of this Agreement;
(v) Contract (or group of related Contracts) with any (A) Specified Customer or (B) Specified Supplier;
(vi) Contract which (A) imposes a restriction on the geographies or businesses in which the Companies may operate the Business (including covenants not to compete or conduct business in any territory) other than non-exclusive license agreements entered into in the Ordinary Course of Business (B) contains exclusivity obligations or similar restrictions binding on the Company or any of its Subsidiaries or that would be binding on Purchaser or any of its Affiliates (other than the Company or any of its Subsidiaries) after Closing, including granting any exclusive rights with respect to any Owned Intellectual Property, or (C) contains exclusivity obligations or similar restrictions binding on any counterparty or (D) provides “most favored nation” or similar provisions;
(vii) lease or agreement Contract under which it is lessor of, of or permits any third party to hold or operate, operate any property, real or personal, personal property for which the annual rental exceeds $3,000 other than as described in Section 3.12 of 500,000 (excluding the Disclosure ScheduleLeases);
(xiviii) contract Contract or group of related contracts Contracts, excluding purchase orders, with the same party for the purchase of products or services under which the undelivered balance of such products or services is that provide for annual payments by a Group Company in excess of $1,000 2,500,000 during the trailing twelve (12) month period ending on the date of the Latest Balance Sheet and cannot be cancelled by a Group Company without penalty or without more than sixty (60) days’ notice;
(ix) Contracts for the employment of, or the provision of consulting services by, any officer, director, employee, individual independent contractor or other natural Person on a full-time, part-time, consulting or other basis (A) providing target annual cash compensation in excess of $325,000 or (B) not terminable upon less than thirty (30) days’ notice and without any liability to the Group Companies;
(x) Contracts pursuant to which a Group Company (A) obtains a license or other right to use, or covenant not to be sued, under any Licensed Intellectual Property, except for rights and/or licenses to Off-The-Shelf Software or Open Source Software or (B) grants a license or other right to use, or covenant not to be sued, under any Owned Intellectual Property, in each case of clauses (A) and (B), other than purchase orders entered into (1) non-exclusive licenses granted to or from customers in the ordinary course Ordinary Course of business consistent Business, (2) confidentiality agreements, non-disclosure agreements and employee agreements on substantially the Company’s form as has previously been provided to Purchaser, or (3) agreements in which the licenses or rights to Intellectual Property granted are merely incidental to the transaction contemplated and granted on a non-exclusive basis (provided, that, agreements referenced in clauses (1)-(3) shall be deemed to be Material Contracts);
(xi) separation, change in control, retention, severance (or any Contract providing for the provision of severance) or similar Contracts with past practices)any current or former (to the extent of any ongoing liability) employee, officer, director or independent contractor of the Group Companies;
(xii) contract Contracts relating to any completed material business acquisition by any Group Company within the last two (2) years; or
(xiii) other than purchase and sale orders received by the Group Companies in the Ordinary Course of Business, any written contractual obligation (or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiiicontractual obligations) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products inventory, raw materials, commodities, supplies, goods, products, equipment or servicesother personal property, in each case, with any Specified Customer or Specified Supplier.
(b) The Purchaser has been supplied with a true and correct copy of all written Contracts that are required to be disclosed on the Contracts and Commitments Schedule as of the date of this Agreement (collectively, the “Material Contracts”).
(c) No Group Company has, in any material respect, violated or breached, or committed any default under, any Material Contract. To the knowledge of the Company, no other Person has materially violated or breached, or committed any material default under, any Material Contract. No event has occurred and is continuing over through any Group Company’s actions or inactions that will result in a period material violation or breach of more any of the provisions of any Material Contract, and each Contract is in full force and effect. To the Company’s knowledge, none of the other parties to any such Contract is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder. As of the date hereof, to the Company’s knowledge, other than six months as disclosed on the Contracts and Commitments Schedule, neither the Company nor any Company Subsidiary has received written notice to the effect that any customer with purchases from the date Company and or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures Subsidiaries in excess of $10,000;
(xix) agreement 250,000 for the sale of twelve-month period ending on the date hereof intends to cancel or terminate any capital asset such Contract or relationship or materially reduce purchases thereunder, or to exercise or not in to exercise any option to renew thereunder, and neither the ordinary course of business or exceeding $10,000;
(xx) contract with Company nor any affiliate which in any way relates Company Subsidiary has received notice to the Company (effect that any other than for employment on customary terms);
(xxi) contract under which a change in control party to any Contract intends to breach or attempt to materially and detrimentally alter the terms of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicessuch Contract.
Appears in 1 contract
Sources: Equity Purchase and Merger Agreement (Roper Technologies Inc)
Contracts and Commitments. (a) Section 3.16 of the Disclosure Except as disclosed in Schedule lists the following agreements4.9, whether oral or written, to which the Company is not a party to any contract, obligation or commitment which involves a potential commitment by HTI in excess of $500,000 or which is otherwise material and not entered into in the ordinary course of business and is not obligated under any contract or agreement or subject to any charter restriction which are currently presently materially adversely affects"" its business, properties, assets, prospects or financial condition. The Company is not in effect:default under any contract, obligation or commitment the consequences of which default would have a Material Adverse Effect on the Company. All agreements terminable by a third party in the event the Company enters into this Agreement have been brought to DUPONT's attention.
(ib) collective bargaining agreement Except as set forth in Schedule 4.9, HTI is not a party to any material written or oral
(a) contract with any labor union;
(iib) bonuscontract for the future purchase of fixed assets or for the future purchase of materials, pension, profit sharing, retirement supplies or other form equipment in excess of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder)normal operating requirements;
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(vc) contract for the employment of any officer, individual employee officer or other person director on a full-time or consulting basis or relating to severance pay for any such personcontract with any person on a consulting basis;
(vid) confidentiality agreementbonus, pension, profit-sharing, retirement, stock purchase, stock option, or similar plan;
(viie) agreement or indenture relating to the borrowing of money or to the mortgaging, pledging or otherwise placing placement of a lien on any of the assets of the CompanyHTI;
(viiif) guaranty by it of any obligation for borrowed money or otherwise;
(ixg) lease or agreement under which it HTI is lessee of, of or holds or operates any property, real or personal, owned by any other party, for which the annual rental exceeds $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(xh) lease or agreement under which it HTI is lessor of, of or permits any third party to hold or operate, operate any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Scheduleowned or controlled by HTI;
(xii) contract agreement or group of related contracts with the same party for the purchase of products or services other commitment under which the undelivered balance of HTI is obligated to pay any broker's fees, finder's fees or any such products or services is similar fees, to any third party in excess of $1,000 (other than purchase orders entered into in 75,000 during the ordinary course of business consistent with past practices)year ended December 31, 1996;
(xiik) contract contract, agreement or group of related contracts with the same party for the sale of products or services commitment under which the undelivered balance HTI has issued, or may become obligated to issue, any shares of such products capital stock of HTI, or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereofwarrants, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebatesoptions, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties convertible securities or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 commitments pursuant to which HTI is or may become obligated to issue any shares of the Disclosure Schedule;
(xviii) contract its capital stock; or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset not in the ordinary course of business other contract, agreement, arrangement or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement understanding which is either material to the business of the Company HTI. HTI has furnished to DUPONT true and correct copies of all such agreements and other documents requested by DUPONT or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicesits authorized representatives.
Appears in 1 contract
Sources: Stock Purchase Agreement (Hudson Technologies Inc /Ny)
Contracts and Commitments. (a) Section 3.16 of the Disclosure Schedule 2.22 lists the following agreementseach agreement and arrangement, whether oral written or writtenoral, (x) to which the Company Seller is a party or by which Seller or any of the Assets is bound and which are currently in effect:
(y) that relates to and is material to the Business or the Assets (“Material Agreements”), including without limitation (i) collective bargaining agreement any agreements or contract with any labor union;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) lease or agreement arrangements under which it is lessee of, or holds or operates Seller has any property, real or personal, owned by any other party, for which the annual rental exceeds $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures liability in excess of $10,000;; (ii) any leases or licenses with a term of one year or more or pursuant to which Seller is entitled to or obligated to pay in excess of $10,000; (iii) any capital or operating leases or conditional sales agreements relating to vehicles or equipment pursuant to which Seller is entitled or obligated to pay in excess of $10,000; (iv) any service agreements or arrangements with an aggregate obligation in excess of $10,000; (v) any employment, consulting, noncompetition, separation, collective bargaining, union or labor agreements or arrangements; (vi) any agreement evidencing, securing or otherwise relating to any indebtedness in excess of $10,000 for which Seller has any liability, (vii) any agreement with or for the benefit of any stockholder, director, officer or employee of Seller, or any affiliate or family member thereof; and (viii) any other agreement or arrangement pursuant to which Seller could be required to make or be entitled to receive aggregate payments in excess of $10,000 and which is not cancelable without penalty upon 30 days notice.
(xixb) agreement for Seller has performed all of its obligations under each Material Agreement, and to the sale knowledge of Seller, there exists no breach or default (or event that with notice or lapse of time would constitute a breach or default) under any Material Agreement.
(c) Each Material Agreement is valid, binding and in full force and effect and enforceable by Seller in accordance with its respective terms. There has been no termination or threatened termination or notice of default under any Material Agreement. Seller has delivered to Purchaser a copy of each written Material Agreement and a written summary of all material terms of each oral Material Agreement.
(d) Except as set forth in Schedule 2.6, no consent of any capital asset not person is required in the ordinary course of business or exceeding $10,000;
(xx) contract connection with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any of the Company's rights or obligations;
(xxii) contract for the distribution of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby by this Agreement to preserve the rights of Seller under or which was not entered into to prevent any disadvantage to Seller in respect of any Material Agreement. All consents set forth on Schedule 2.6 will be obtained prior to the ordinary course of business consistent with past practicesClosing Date.
Appears in 1 contract
Contracts and Commitments. i. Except as set forth on the Target Disclosure Schedule, the Target (a) Section 3.16 or to the knowledge of the Disclosure Schedule lists president of the following agreementsTarget, whether oral or written, any employee of the Target with respect to which the Company business of the Target) is not a party and which are currently in effectto or bound by any written or oral:
(i1) collective bargaining agreement or contract with any labor union;
(ii) bonus, pension, profit sharing, retirement stock option, employee stock purchase or other form of plan or arrangement providing for deferred or other compensation to employees or any other employee benefit plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan arrangement or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv2) stock purchase collective bargaining agreement or stock option planany other contract with any labor union, or severance agreements, programs, policies or arrangements;
(v3) management agreement, contract for the employment of any officer, individual employee or other person Person on a full-time time, part-time, consulting or consulting other basis providing annual cash or relating to severance pay other compensation in excess of $50,000 or providing for the payment of any such personcash or other compensation or benefits upon the consummation of the transactions contemplated hereby;
(vi4) confidentiality agreementmaterial contract or agreement requiring the consent of any party thereto upon a change in control of the Target, containing any provision which would result in a modification of any rights or obligations of any party thereunder upon a change in control of the Target or which would provide any party any remedy (including rescission or liquidated damages) in the event of a change in control of the Target;
(vii5) contract under which it has advanced or loaned monies to any other Person or otherwise agreed to advance, loan or invest any funds;
(6) agreement or indenture relating to the borrowing of borrowed money or to other Indebtedness or the mortgaging, pledging or otherwise placing a lien Lien on any material asset or material group of the assets of the CompanyTarget or any letter of credit arrangements;
(viii7) guaranty by it of any obligation for borrowed money or otherwiseotherwise (other than endorsements made for collection in the ordinary course of business);
(ix) 8) lease or agreement under which it the Target is lessee of, of or holds or operates any property, real or personal, owned by any other partyPerson, except for any lease of personal property under which the aggregate annual rental exceeds payments do not exceed $3,000, other than as described in Section 3.12 of the Disclosure Schedule25,000;
(x9) lease or agreement under which it the Target is lessor of, of or permits any third party to hold or operate, operate any property, real or personal, for which owned or controlled by the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure ScheduleTarget;
(xi10) license or royalty agreements, other than any license or royalty agreements related to third party off-the-shelf software;
(11) nondisclosure or confidentiality agreements, other than such entered into with customers in the ordinary course of business and consistent with past practice;
(12) contract or group of related contracts with the same party or group of affiliated parties for the purchase of raw materials, commodities, supplies, products, equipment or other personal property or for the receipt of services under which the undelivered balance of such products and services has a selling price in excess of $50,000;
(13) contract or group of related contracts with the same party or group of affiliated parties for the sale of raw materials, commodities, supplies, products or other personal property or for the furnishing of services under which the undelivered balance of such products or services is due from the Target has a selling price in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices)50,000;
(xii14) other contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) affiliated parties continuing over a period of more than six months from the date or dates thereof, not terminable by it on the Target upon 30 (thirty) days' or less notice without penalty and or involving more than $5,00050,000;
(xiv15) contract relating to the marketing, sale, advertising or promotion of its products;
(16) warranty agreement with respect to products sold or leased (other than any such agreement containing the standard terms and conditions described on the Target Disclosure Schedule corresponding to this Section or indemnity agreement with any supplier under which it is obligated to indemnify such supplier against product liability claims;
(17) agreements relating to the ownership of or investments in any business or enterprise, including investments in joint ventures and minority equity investments;
(18) assignment, license, indemnification or other agreement with respect to any intangible property (including any Intellectual Property Rights);
(19) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(20) broker, agent, sales representative, sales or distribution agreement or material agreement relating to the export and/or import of any goods or equipment;
(21) power of attorney or other similar agreement or grant of agency;
(22) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company agreement prohibiting it from freely engaging in any business or competing anywhere in the world;; or
(xvi23) franchise agreement;
(xvii) license other agreement which is material to its operations or agreement providing for the payment business prospects or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures involves an annual consideration in excess of $10,000;
(xix) agreement for the sale of any capital asset 50,000, whether or not in the ordinary course of business or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (business, other than for employment on customary terms);any agreement specified by paragraphs (a) through (v) above.
(xxi) contract under which a change in control ii. All of the Company terminates contracts, agreements and instruments set forth or modifies any required to be set forth on the Target Disclosure Schedule corresponding to this Section and with respect to which the Target does or may recognize sales or revenues and all of the Company's rights material contracts, agreements and instruments set forth or obligations;
(xxii) contract for required to be set forth on the distribution Target Disclosure Schedule corresponding to this Section are valid, binding and enforceable in accordance with their respective terms and shall be in full force and effect in accordance with their terms upon consummation of the Company's products (including any distributor, sales and original equipment manufacturer contracts); or
(xxiii) other agreement which is either material to the business of the Company or the transactions contemplated hereby or which was not entered into in hereby; provided that the ordinary course of business consistent with past practices.representations and warranties set
Appears in 1 contract
Sources: Merger Agreement (Sabratek Corp)
Contracts and Commitments. (a) Section 3.16 of Except as specifically contemplated by this Agreement and except as set forth in Schedule 3.9, the Disclosure Schedule lists the following agreementsCompanies are not a party to or bound by, whether oral written or writtenoral, to which the Company is a party and which are currently in effectany:
(i) collective bargaining agreement or contract Contract with any labor union;
(ii) union or any bonus, commissions, pension, profit sharing, retirement or any other form of deferred compensation planor incentive plan or any stock purchase, other than as described in Section 3.21 of the Disclosure Schedule (stock option, hospitalization insurance or excluded by Section 3.21 from inclusion thereunder)similar plan or practice;
(iiiii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract Contract for the employment of any officer, individual employee or other person Person on a full-time time, consulting or consulting independent contractor basis or relating to any severance pay for any such personagreements or change-of-control agreements;
(viiii) confidentiality agreement;
(vii) agreement or indenture Contract relating to the borrowing of money Indebtedness or to mortgaging, pledging or otherwise placing a lien Lien on any of its assets, other than a Permitted Encumbrance;
(iv) Contract with respect to the assets lending or investing of funds (other than accounts receivable incurred in the Ordinary Course of Business);
(v) Contract for the purchase of products, Inventory, supplies, equipment, machinery, other tangible personal property or services by the Companies, under which the undelivered balance of such products, Inventory, supplies, equipment, machinery, other personal property or services has an aggregate price or other cost in excess of US $50,000;
(vi) Contract with any customer of the CompanyCompanies that has generated at least US $50,000 of net revenue to the Companies during the nine-month period ended September 30, 2017 under which the customer has a remaining payment obligation in excess of US $10,000;
(vii) Contract or purchase order for capital expenditures or the acquisition or construction of fixed assets requiring the payment by the Companies of an amount in excess of US $50,000;
(viii) guaranty by it of any obligation for borrowed money license or otherwiseroyalty Contracts, or management, consulting, or advisory contracts;
(ix) lease or agreement guaranty of any obligation, other than endorsements made for collection;
(x) Contract under which it any of the Companies is lessee of, or holds or operates operates, any personal property owned by any other party calling for payments by the relevant Company or under which any of the Companies is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by any other party, for which the annual rental exceeds $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Scheduleit;
(xi) contract Contract or group of related contracts Contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' 60 days or less notice without penalty and involving more than $5,000penalties (except leases for real property);
(xivxii) contract Contract relating to the ownership of or group of related contracts with the same party calling for investments in any rebatesbusiness or enterprise (including, allowancesbut not limited to, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Companyinvestments in joint ventures and minority equity investments);
(xvxiii) contract Contract which prohibits any of the Company Companies from freely engaging in business anywhere in the world;
(xiv) Contract relating to the distribution, marketing, advertising or sales of any of the Companies’ products and/or services;
(xv) Contract pursuant to which it subcontracts work to third parties;
(xvi) franchise agreementpowers of attorney existing and in force and effect as of the Closing Date;
(xvii) license agreement Contract relating to the acquisition or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 sale of the Disclosure ScheduleBusiness (or any material portion thereof) or all or a material portion of the assets of the Companies;
(xviii) contract or commitment for capital expenditures Contract relating to Transferred Proprietary Rights except as set forth in excess of $10,000Schedule 3.10;
(xix) agreement for the sale of any capital asset not in the ordinary course of business or exceeding $10,000customer Contract containing most-favored-nations pricing provisions;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms)supplier or customer Contract containing minimum volume requirements or guarantees;
(xxi) contract under which a change in control of Contract material to the Company terminates Business and providing for joint research, design or modifies any of the Company's rights or obligationsdevelopment;
(xxii) contract for the distribution Contract involving any resolution or settlement of the Company's products (including any distributoractual or threatened litigation, sales and original equipment manufacturer contracts)arbitration, claim or other dispute with a value of greater than US $200,000; or
(xxiii) other agreement which is either Contract material to the business any of the Company or the transactions contemplated hereby or which was Companies and not entered into in the ordinary course Ordinary Course of business consistent Business.
(b) Except as disclosed in Schedule 3.7(b) or Schedule 3.9, (i) to the Knowledge of Sellers, no Contract disclosed on Schedule 3.7(b) or Schedule 3.9 (each, a “Material Contract” and collectively, the “Material Contracts”) has been materially breached or canceled by the other party and, to the Knowledge of Sellers, there is no anticipated material breach by any other party to any Material Contract, (ii) the Companies have performed all the material obligations required to be performed by them under the Material Contracts to the extent required to be so performed as of the date hereof or as of the Closing Date and are not in material default under or in material breach of any Material Contract and, to the Knowledge of Sellers, no event or condition has occurred or arisen which with past practicesthe passage of time or the giving of notice or both would result in a material default or material breach thereunder by any of the Companies, (iii) the Companies do not have a present expectation or intention of not fully performing any obligation pursuant to any Material Contract, and (iv) each Material Contract is legal, valid, binding, enforceable and in full force and effect and will continue as such following the consummation of the transactions contemplated hereby, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Law affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
(c) During the two-year period ending on the date of this Agreement, the Companies have not used any name or names under which they have invoiced account debtors, maintained records regarding its assets or otherwise conducted business, other than the names set forth on Schedule 3.9.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (SemGroup Corp)
Contracts and Commitments. (a) Section 3.16 of the The Seller Disclosure Schedule lists contains a complete and accurate list of all contracts, agreements, commitments and instruments (whether written or oral, contingent or otherwise) of PRI and NCL of or concerning the following agreements, whether oral or written, to which matters (the Company is a party and which are currently in effect:"Seller Agreements"):
(i) collective bargaining agreement the lease, as lessee or contract with lessor, or license, as licensee or licensor, of any labor unionreal or personal property (tangible or intangible);
(ii) bonusthe employment or engagement of any officer, pensiondirector, profit sharingemployee, retirement consultant or other form of deferred compensation planagent, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder)those terminable at will without severance obligation, and any covenant not to compete with any former employees;
(iii) hospitalization insurance any arrangement limiting the freedom of the Sellers, PRI or other welfare benefit plan NCL to compete in any manner in any line of business or practicerequiring the Sellers, whether formal PRI or informal, NCL to share profits other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder)commissions payable to employed sales persons;
(iv) stock purchase any arrangement that could reasonably be anticipated to have a material adverse effect on PRI or stock option planNCL, financial or otherwise;
(v) contract for the employment of any officer, individual employee or other person on a full-time or consulting basis or relating to severance pay for any such person;
(vi) confidentiality agreement;
(vii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on any of the assets of the Company;
(viii) guaranty by it of any obligation for borrowed money or otherwise;
(ix) 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 $3,000, other than as described in Section 3.12 of the Disclosure Schedule;
(x) lease or agreement under which it is lessor of, or permits any third party to hold or operate, any property, real or personal, for which the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure Schedule;
(xi) contract or group of related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $1,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xii) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices);
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xvi) franchise agreement;
(xvii) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures in excess of $10,000;
(xix) agreement for the sale of any capital asset material arrangement not in the ordinary course of business or exceeding $10,000business;
(xxvi) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms)power of attorney, whether limited or general, granted by or PRI or NCL;
(xxivii) contract under which any arrangement with customers, patients, managed care organizations, third party payors, pharmacy benefit managers or drug suppliers;
(viii) any arrangement that requires performance for a change period of more than 30 days or that requires aggregate payments in control excess of $25,000; and
(ix) any relationship with PRI or NCL or any person or entity affiliated with or related to PRI or NCL or any officer or director thereof.
(b) The Sellers have delivered to Buyer true and complete copies of all of the Company terminates Seller Agreements. Except as indicated on the Seller Disclosure Schedule, the Seller Agreements are valid and effective in accordance with their terms, and there is not under any of such Seller Agreements (i) any existing or modifies claimed material default by PRI or NCL or event which, with the notice or lapse of time, or both, would constitute a material default by PRI or NCL, or (ii) to the knowledge of the Sellers, any existing or claimed material default by any other party or event which with notice or lapse of time, or both, would constitute a material default by any such party. Except as indicated on the Seller Disclosure Schedule, the Acquisition will not result in a breach of or default under, or require the consent of any other party to, or give rise to a right of termination by any other party to, any of the Company's rights or obligations;
(xxii) contract for Seller Agreements. There is no actual or, to the distribution knowledge of the Company's products (including Sellers, threatened termination, cancellation or limitation of any distributorSeller Agreements that would have a material adverse effect on PRI, sales and original equipment manufacturer contracts); or
(xxiii) NCL, their business, finances or otherwise. To the knowledge of the Sellers, there is no pending or threatened bankruptcy, insolvency or similar proceeding with respect to any other agreement which is either material party to the business of the Company or the transactions contemplated hereby or which was not entered into in the ordinary course of business consistent with past practicesSeller Agreements.
Appears in 1 contract
Contracts and Commitments. (a) Section 3.16 Except as expressly contemplated by this ------------------------- Agreement or as set forth on the attached "Contracts Schedule," as of the Disclosure Schedule lists the following agreementsClosing, whether oral or written, to which neither the Company nor any Subsidiary is a party and which are currently in effectto any written or oral:
(i) collective bargaining agreement pension, profit sharing, stock option, employee stock purchase or other plan or arrangement providing for deferred or other compensation to employees or any other employee benefit plan or arrangement, or any contract with any labor union, or any severance agreements;
(ii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in Section 3.21 of the Disclosure Schedule (or excluded by Section 3.21 from inclusion thereunder);
(iv) stock purchase or stock option plan;
(v) contract for the employment of any officer, individual employee or other person Person on a full-time time, part-time, consulting or consulting other basis providing annual compensation in excess of $100,000 or contract relating to severance pay for any such personloans to officers, directors or affiliates;
(viiii) confidentiality agreementcontract under which the Company or a Subsidiary has advanced or loaned any other Person amounts in the aggregate exceeding $100,000;
(viiiv) agreement or indenture relating to the borrowing of money or to the mortgaging, pledging or otherwise placing a lien on any material asset or material group of the assets of the CompanyCompany and its Subsidiaries;
(viiiv) guaranty by it guarantee of any obligation for borrowed money or otherwiseobligation;
(ixvi) lease or agreement under which it the Company or any Subsidiary is lessee of, of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental exceeds payments do not exceed $3,000, other than as described in Section 3.12 of the Disclosure Schedule25,000;
(xvii) lease or agreement under which it the Company or any Subsidiary is lessor of, of or permits any third party to hold or operate, operate any property, real or personal, for which owned or controlled by the annual rental exceeds $3,000 other than as described in Section 3.12 of the Disclosure ScheduleCompany or any Subsidiary;
(xiviii) contract or group of related contracts with the same party for or group 23 of affiliated parties the purchase performance of products or services under which the undelivered balance of such products or services is involves a consideration in excess of $1,000 150,000;
(ix) assignment, license, indemnification or agreement with respect to any Proprietary Rights or other intangible property;
(x) warranty agreement with respect to its services rendered or its products sold or leased;
(xi) agreements under which it has granted any Person any registration rights (including piggyback rights) other than purchase orders entered into in the ordinary course of business consistent with past practices)Notes Registration Rights Agreement and the Registration Agreement;
(xii) contract contract, agreement or group other arrangement with any officer, director, employee or Affiliate, or any Affiliate of related contracts with the same party for the sale of products any officer, director or services under which the undelivered balance of such products or services has a sales price in excess of $2,000 (other than purchase orders entered into in the ordinary course of business consistent with past practices)employee except employment agreements terminable at will;
(xiii) contract or group of related contracts with the same party (other than any contract or group of related contracts for the purchase or sale of products or services) continuing over a period of more than six months from the date or dates thereof, not terminable by agreement prohibiting it on 30 (thirty) days' or less notice without penalty and involving more than $5,000;
(xiv) contract or group of related contracts with the same party calling for any rebates, allowances, discounts, performance money or compensation of any type previously paid or granted or to be paid or granted to or by the Company;
(xv) contract which prohibits the Company from freely engaging in any business or competing anywhere in the world;
(xvixiv) franchise agreement;
(xvii) license any other agreement which is material to its operations and business prospects or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the intellectual property rights listed in Section 3.17 of the Disclosure Schedule;
(xviii) contract or commitment for capital expenditures involves a consideration in excess of $10,000;150,000 annually; and
(xixxv) any loan agreement for the sale of with or guarantee to any capital asset not in the ordinary course of business employee, officer or exceeding $10,000;
(xx) contract with any affiliate which in any way relates to the Company (other than for employment on customary terms);
(xxi) contract under which a change in control of the Company terminates or modifies any director of the Company's rights . The Company and each Subsidiary have performed all material obligations required to be performed by them and are not in default under or obligations;
in breach of nor in receipt of any claim of default or breach under any contract or commitment required to be set forth on the "Contracts Schedule" (xxii) contract for the distribution of the Company's products (including any distributoreach, sales and original equipment manufacturer contractsa "Material Contract"); or
(xxiii) other agreement no event has occurred which is either material with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance under any Material Contract, to the business of which the Company or any Subsidiary is subject; neither the transactions contemplated hereby Company nor any Subsidiary has any present expectation or intention of not fully performing all such obligations; and neither the Company nor any Subsidiary has knowledge of any breach or anticipated breach by the other parties to any Material Contract or commitment to which was not entered into it is a party. Except as set forth on the Contracts Schedule, since the Latest Balance Sheet, there have been no material changes in any employment agreement or compensation arrangement between the ordinary course of business consistent with past practicesCompany and its employees.
Appears in 1 contract
Sources: Purchase Agreement (Centennial Communications Corp)