Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company is not a party to any written or oral: (i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements; (ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice; (iii) contract under which the Company has advanced or loaned any other Person amounts; (iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company; (v) Guaranty; (vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000; (vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company; (viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business; (ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer; (x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers; (xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software; (xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer; (xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights); (xiv) sales, distribution, manufacturing, supply or franchise agreement; (xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually; (xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer; (xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer; (xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or (xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements. (b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company. (c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Penn National Gaming Inc)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on in the Contracts Schedule, Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)3.10, the Company is not a party to any contract or agreement, written or oral:
(i) for a bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)retirement, employee stock deferred compensation, medical or life insurance plan, membership purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, option or any other employee benefit plan plans or arrangement, arrangements providing for benefits of any type to employees (either current or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsformer) of Company;
(ii) contract for collective bargaining or with any labor union;
(iii) for the employment borrowing of money or engagement mortgaging, pledging or encumbering any of the Company’s assets;
(iv) for the lending or investing of funds to or in other persons or entities;
(v) granting any officer, individual employee power of attorney (irrevocable or other otherwise) to any Person on a full-time, part-time, consulting, contractor or other basis or for any purpose relating to loans to officers, directors the Business or Affiliatesthe Company’s assets, other than powers of attorney given to regulatory authorities in connection with routine qualifications to do business; or
(vi) with an Affiliate of Seller or the offer letters substantially Company (other than the Company’s Charter Documents).
(b) The Contracts Schedule lists each of the Material Contracts. For purposes of this Agreement, “Material Contracts” includes the following:
(i) any and all contracts for the sale of goods or services with a value in excess of Fifty Thousand Dollars ($50,000) individually or One Hundred Thousand Dollars ($100,000) in the form made available aggregate, or which is not terminable without penalty by or on behalf of the Company on less than ninety (90) days’ notice;
(ii) any and all contracts, agreements, licenses, leases (other than the Leases), sales and purchase orders and other legally binding commitments that obligate the Company to Buyer pay, assume, guaranty or secure an amount of Fifty Thousand Dollars ($50,000) or more individually or One Hundred Thousand Dollars ($100,000) or more in the aggregate, or that provide for “at-will” employment and maybe cannot be terminated without penalty by or on behalf of the Company upon on less than thirty ninety (3090) days’ notice;
(iii) contract under which any and all contracts between the Company has advanced or loaned on the one hand and any Affiliate of the Company on the other Person amountshand (other than the Company’s Charter Documents);
(iv) agreement any and all broker, distributor, dealer, representative or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Companyagency agreements;
(v) Guarantyany and all insurance policies insuring the Business, the Facility or any of the Company’s assets (collectively, the “Insurance Policies”);
(vi) lease any and all employment, non-competition or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000consulting agreement;
(vii) lease or agreement under which each contract containing covenants purporting to materially limit the freedom of the Company is lessor to compete in any line of business or permits in any third party to hold or operate any property, real or personal, owned or controlled by the Companygeographic area;
(viii) each contract that is not for the purchase, sale or group license of related contracts with the same party goods or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred services in the ordinary course of businessbusiness consistent with past practice, including any factoring agreements;
(ix) assignmenteach partnership, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty joint venture or other consideration for any such software similar agreement or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument arrangement to which the Company is a party;
(x) any and all agreements requiring a loan or advance by the Company; and
(iixi) no event has occurred which with any other contract or agreement that is material to the passage of time Business or the giving financial condition or results of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part operations of the Company.
(c) Buyer’s counsel Seller has been supplied with a delivered to Buyer true and correct copy complete copies of each of the all written Material Contracts which are referred to on Schedule 5.11 of the Disclosure ScheduleContracts, together with all amendments, waivers supplements and material correspondence related thereto. The Contracts Schedule includes a description of the material terms of each Material Contract that is oral. The Material Contracts are in full force and effect and are enforceable against the Company and, to the best of the Seller’s knowledge, all other parties thereto. Except as set forth on the Contracts Schedule, neither Seller nor the Company has (i) received any notice that it is in default under, or not in compliance with any material provision of, any Material Contract, or (ii) delivered any notice to another party alleging any default under, or failure to comply with any material provision of, any Material Contract. To the best of the Seller’s knowledge, no event has occurred that, with notice, the passage of time or both, would constitute a default by the Company or any other party under, or failure of the Company or any other party to comply with a material provision of, any of the Material Contracts, or otherwise give any party a right of termination or modification thereof.
(d) Set forth on Schedule 3.10(d) is a list of the twenty-five (25) largest customers of the Company by gallons of fuel purchased in the 2004 calendar year.
(e) Except as disclosed on Schedule 3.10(e), to the best of Seller’s knowledge, no material supplier to or landlord of the Company, including any party to the Ground Lease, or any governmental entity has taken, and neither Seller nor the Company has received any notice that, any material supplier to or landlord of the Company, including any party to the Ground Lease, or any governmental entity contemplates taking, any steps to terminate or materially alter the business relationship of Company with such supplier or landlord, including any party to the Ground Lease.
(f) The Insurance Policies are in full force and effect and shall remain in full force and effect until 11:59 p.m. on the day following the Closing Date. Except as set forth on Schedule 3.10(f), there are no claims related to or arising out of the operation of the Business pending under any Insurance Policies. To the best of the Seller’s knowledge, no event has occurred, and no condition or circumstances exist, that could reasonably be expected to (with or without notice or lapse of time) give rise to or serve as a basis for any claims related to or arising out of the operation of the Business under the Insurance Policies.
(g) The Company does not have, directly or indirectly, any (i) interest in the outstanding stock or ownership interests of any corporation or in any partnership, joint venture or other changes theretoentity, or (ii) agreement, understanding, contract or commitment relating to an interest in any such entity.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Macquarie Infrastructure CO LLC)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as Schedule 5.19 hereto (with paragraph references corresponding to those set forth on Schedule 5.11(abelow) contains a true and complete list of each of the Disclosure Schedule following contracts (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all written amendments and supplements thereto, have been delivered or oral contracts or agreements required made available to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”HHTI), to which STH or any of the Company STH Subsidiaries is not a party to or by which any written STH Hotel or oralthe Office Building is bound:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement all contracts providing for deferred the leasing or other compensation (including any bonuses management of one or other remuneration and whether in cash more of the STH Hotels or otherwise), to employees, former employees or consultants, the Office Building or any other employee benefit plan portion of one or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsmore of the STH Hotels;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeall STH Franchise Agreements;
(iii) contract under which the Company has advanced all material contracts providing for a commitment of employment or loaned any other Person amountsconsultation services for a specified or unspecified term;
(iv) agreement all contracts with any person containing any provision or indenture relating covenant prohibiting or materially limiting the ability of STH or any of the STH Subsidiaries to borrowed money or other Indebtedness or the mortgagingengage in any business activity, pledging hire employees, solicit customers or otherwise placing a Lien, other than a Permitted Lien, on compete with any asset or group of assets of the Companyperson;
(v) Guarantyall partnership, joint venture, stockholders' or other similar contracts with any person;
(vi) lease or agreement under which the Company is lessee all notes, debentures, bonds and other evidence of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000Indebtedness;
(vii) lease or agreement under which the Company is lessor of or permits all contracts relating to any third party to hold or operate any property, real or personal, owned or controlled by the Companybusiness combination;
(viii) contract all contracts between or group among STH or any of related contracts with the same party STH Subsidiaries, on the one hand, and any of their stockholders or group of affiliated parties affiliates, on the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of businesshand;
(ix) assignment, license, indemnification all collective bargaining or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;similar labor contracts; and
(x) contract concerning all other contracts that involve the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, annual payment or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except potential annual payment pursuant to the Company’s standard form terms of customer agreement in such contract, by or to STH or any of the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term STH Subsidiaries of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration $25,000 or aggregate payments in excess of $150,000 annually;
100,000 that will not (xviA) contract regarding voting, transfer be fully performed on or other arrangements related prior to the Company’s Capital Stock or warrantsEffective Time, options or other rights to acquire any of Capital Stock of the Company, except pursuant (B) expire by their terms prior to the Company’s standard form of option agreement in the form delivered to Buyer;
Effective Time, or (xviiC) contract or agreement regarding any indemnification provided to or be cancelable by the CompanySurviving Entity, including any contract regarding any indemnification provided with respect to Environmental without penalty, upon not more than 30 days notice, including, without limitation, all leases, contracts for purchase and Safety Requirementssale of assets, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations advance booking contracts and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsbanquet contracts.
(b) All of the contracts, leases, agreements and instruments set forth or Each contract required to be set forth disclosed on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be 5.19 is in full force and effect without penalty and constitutes a legal, valid and binding agreement, enforceable in accordance with their its terms upon consummation and, except as disclosed on Schedule 5.19, neither STH, any of the transactions contemplated herebySTH Subsidiaries nor, subject to (i) laws the knowledge of general application relating STH, any other party to bankruptcysuch contract is in violation, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in breach or default under any such contract (or in breach of nor, as of the date hereof, in receipt of any claim of default with notice or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage lapse of time or the giving of notice or both would result be in a defaultviolation, breach or event of noncompliance by the Company default under any Material Contracts such contract), the effect of which, individually or instrument to which in the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penaltyaggregate, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have result in a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a true and correct copy of each The STH Franchise Agreements disclosed on Schedule 5.19 constitute all of the Material Contracts which are referred franchise or similar agreements necessary to on Schedule 5.11 operate and manage the STH Hotels and neither STH nor any STH Subsidiary has received any notice or has any knowledge of the Disclosure Schedule, together with all amendments, waivers an event of default or other changes theretotermination or proposed termination under any such STH Franchise Agreement.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company is not a party to any written or oral:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor2.1.18 hereto, as of related to the date hereofBusiness, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company Seller is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations ofto, attempts or requests to renegotiate or outstanding rights to renegotiatebound by, any terms oral or written contracts, agreements, commitments or understandings:
(a) with any present or former officer or employee or consultant or for the employment of any person, including any consultant, who is engaged for in the conduct of the Material Contracts on Business;
(b) with any dealer, representative, or service agreement contract or commitment, sales agency, manufacturer's representative, distributorship or marketing agreement or commitment relating to the part of the Company.Business;
(c) for leasing personal property (including, without limitation, leases for vending and other machinery and office equipment, furniture, fixtures, vehicles and tools) which require in any case an annual payment in excess of Twenty-Five Thousand Dollars ($25,000) or the term of any of which exceeds one (1) year and which is not cancelable on thirty (30) days' or less notice without penalty;
(d) involving the payment or receipt in any case of in excess of Twenty-Five Thousand Dollars ($25,000) per annum by Seller and the term of any of which exceeds one (1) year (including, without limitation, vendor, supply and service contracts) and which is not cancelable on thirty (30) days' or less notice without penalty;
(e) containing a covenant not to compete or confidentiality agreement by Seller with respect to the Business or which restricts Seller from engaging in the Business, which restriction would affect Buyer’s counsel has been supplied with a true and correct copy of each 's ability to operate the Business or to Seller's Knowledge, is any employee at Seller engaged in the conduct of the Material Contracts Business subject to any covenants not to compete, confidentiality agreement or other agreement which are referred in any case restricts such employee's ability to on Schedule 5.11 perform his obligations to the Business;
(f) involving capital expenditures or the acquisition of fixed assets which require or will require aggregate payments of more than One Hundred Thousand Dollars ($100,000);
(g) other than as included within the Assumed Contracts, involving a note, debenture, bond, equipment trust agreement, mortgage, indenture, security agreement, letter of credit agreement, loan agreement or other contract or commitment for the borrowing or lending of money specifically relating to the Business, or agreement or arrangement for a line of credit or guarantee, pledge, or undertaking of the Disclosure Scheduleindebtedness of any other person specifically relating to the Business;
(h) providing for the services of agents, together with all amendmentsconsultants, waivers advisors, advertisers, dealers, distributors, sales representatives or similar representatives involving in any case the payment or receipt of in excess of Twenty-Five Thousand Dollars ($25,000) per annum by the Business and not immediately terminable by Seller at will and without cost or liability to the Business (exclusive of accrued but unpaid salaries, commissions and other benefits);
(i) involving any license, franchise, distributorship or other changes theretoagreement which relates in whole or in part to any of the Acquired Assets not otherwise disclosed in the Schedules hereto;
(j) partnership, joint venture or other arrangements or agreements involving a sharing of profits or expenses involving the Business;
(k) Intentionally Omitted;
(l) relating to product or service warranties outside the Ordinary Course of Business (as hereinafter defined) of the Business;
(m) directly or indirectly between Seller, on the one hand, and any of its shareholders, directors, officers and their Affiliates, on the other hand, regarding the leasing or licensing of properties or assets, royalty payments, the providing of services to or by Seller relating to the Business or any loan or other financial or business relationship relating to the Business other than the provision of accounting, legal, corporate, technology support and other services by Seller's corporate offices to the Business in the Ordinary Course of Business;
(n) Intentionally Omitted;
(o) which otherwise is material to the Business and not made in the Ordinary Course of Business and is not otherwise disclosed in any of the Schedules hereto; and
(p) involving any charitable or political contribution relating to the Business.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of Schedules 1.7 or 5.16 to the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)Schedule, the Company is not a party to to, or bound or affected by any contract, lease, agreement, covenant, license, instrument or commitment (whether written or oral) of any type, including the following:
(ia) contracts for the employment or compensation of any officer or individual employee, not terminable without further liability at any time:
(b) contracts with any labor union;
(c) continuing contracts for the future purchase of materials, supplies or equipment, at a cost of $10,000 or more, or to be delivered more than ninety (90) days after the date hereof;
(d) continuing contracts for the future provision of its services;
(e) distribution or agency contracts, franchise contracts, or advertising commitments, which cannot be terminated without further liability to the Company upon no more than thirty (30) days' notice;
(f) pension, profit sharing, deferred compensation, retirement or stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee or stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether plans in cash or otherwise)effect with respect to officers, to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsothers;
(iig) contract leases under which it is lessor or lessee;
(h) underwriting agreements or agreements with a broker or finder;
(i) consulting agreements;
(j) contracts for the employment acquisition of a business, or engagement substantially all of the property, assets, or stock of a business under which there are any continuing or unperformed obligations on the part of any officerof the parties thereto; or
(k) Any other contract, individual employee agreement, or other Person on a full-time, part-time, consulting, contractor commitment involving $10,000 or other basis more or relating which is not terminable without further liability to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less no more than thirty (30) days’ ' notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating . There have been delivered to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group Buyer true and correct copies of assets each of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration Contracts listed in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remediesSchedule. Except as set forth on Schedule 5.11(b) of 5.16 to the Disclosure Schedule, (i) all of the Contracts listed on Schedule 5.16 are valid, binding and in full force and effect and are enforceable in accordance with their terms against all other parties to such Contracts and are assignable to Buyer; provided, however, neither the Company nor the Member makes any representation or warranty with respect to whether any or all Medicare licenses or provider numbers or approvals can be assumed by Buyer or Renex. Buyer and Renex shall be responsible for seeking any such assignments or approvals (or issuances of new numbers where required) and the Company and Member shall cooperate and execute such documents as are reasonably required. The Company has performed, in performed all material respects, all obligations required to be performed by it to date and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach material respect under any Material Contract or instrument to which the Company it is a party; (ii) no event has occurred which with . To the passage knowledge of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which and the Company is a party; (iii) the Company has Member no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts such Contract is in default with the performance of which could reasonably be expected to have a Material Adverse Effectterms thereof. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to Except as set forth on Schedule 5.11 of 5.16 to the Disclosure Schedule, together with all amendmentsnone of the Contracts listed on Schedule 5.16 were arrived at, waivers or other changes theretootherwise reflect, less than arms length negotiations or bargaining.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) 4.10 lists each of the Disclosure Schedule (all written or oral contracts and agreements of the types described below, excluding, however, any such contracts or agreements required which relate exclusively to be set forth on such schedule being referred Excluded Assets, to herein which the Seller or any of its Subsidiaries is a party or is otherwise bound as of the date hereof (the “Material Contracts” and each a “Material Contract”), the Company is not a party to any written or oral:):
(i) contract with any labor union or any bonus, pension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other similar plan or arrangement providing for deferred practice, whether formal or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultantsinformal, or any other employee benefit plan severance agreement or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) management agreement, contract for the employment or engagement of any officer, manager, partner, individual employee or other Person person on a full-time, part-time, consulting, contractor time or consulting basis or providing for the payment of any cash or other basis compensation or relating to loans to officers, directors benefits upon the sale of the Business or Affiliates, other than prohibiting competition or the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticedisclosure of trade secrets or Confidential Information;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any asset or group of assets of the CompanyPurchased Assets or letter of credit arrangements;
(iv) license or royalty agreements;
(v) Guarantynondisclosure or confidentiality agreements pursuant to which Seller is obligated to maintain the confidentiality of, or not to disclose, designated information;
(vi) lease or agreement under which the Company Seller is lessee of or holds or operates any property, real or personalpersonal property leases, owned by any other party, except party for any lease of real or personal property under which the aggregate annual rental payments do not exceed rent exceeds $150,000100,000;
(vii) lease broker, distributor, vendor or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Companymaintenance agreements;
(viii) other contract or group of related contracts with the same party continuing over a period of more than six months from the date or group dates thereof, not terminable by Seller upon thirty (30) days’ or less notice without penalty or involving more than $100,000;
(ix) consulting, maintenance or any other similar agreement, contract or commitment (including any employee leasing or outsourcing arrangement) providing for annual aggregate payments of affiliated parties the performance of more than $100,000;
(x) contract which involves consideration prohibit Seller from freely engaging in business anywhere in the aggregate world;
(xi) contract with any officer, director, employee, shareholder, or Affiliate of Seller (or any individual related by marriage or adoption to any such individual or any entity in excess which any such Person owns any beneficial interest);
(xii) agreements relating to ownership of $150,000or investments in any business or enterprise, including investments in joint ventures and minority equity investments;
(xiii) power of attorney executed by or on behalf of Seller pursuant to which Seller has granted another Person authority to act in Seller’s name or on Seller’s behalf;
(xiv) material contracts and licenses (including all inbound licenses) to which Seller is a party with respect to any Proprietary Rights;
(xv) all oral client and customer engagements and similar arrangements of Seller which, at the time of engagement or any subsequent amendment, provided for services at non-standard rates or on non-customary terms and conditions; or
(xvi) other than purchase and sales orders incurred agreement material to the Business not entered into in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All Seller has made available to Buyer a true and correct copy of the contractsall written Material Contracts (and a true and correct written description of all oral Material Contracts), leasestogether with all amendments, agreements and instruments set forth exhibits, attachments, waivers or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are other changes thereto. Each written Material Contract is legal, valid, binding and enforceable by and against Seller or any Subsidiary of Seller (as the Company, and to the Company’s knowledge, against the other party thereto, case may be) in accordance with their respective terms, its terms and shall be is in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated herebyeffect, subject to (i) laws of general application relating to except as enforceability may be limited by applicable bankruptcy, insolvency and similar laws affecting the relief enforcement of debtorscreditors’ rights generally, and (ii) rules by general principles of law governing specific performance, injunctive relief and other equitable remediesequity. Except as set forth on Schedule 5.11(b4.10, neither Seller nor any Subsidiary of Seller (as the case may be) of nor, to the Disclosure ScheduleSeller’s Knowledge, (i) the Company has performedany other party, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of or default or breach under any Material Contract Contract, and no conditions or instrument to which the Company is a party; (ii) no event has occurred which with the passage events exist, such that, after notice or lapse of time or the giving of notice or both both, would result in constitute a default, breach or event of noncompliance by the Company default under any a written Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts Contract on the part of the Company.
(c) BuyerSeller or of any Subsidiary of Seller or, to the Seller’s counsel has been supplied with a true and correct copy Knowledge, on the part of each of any other parties to the Material Contracts Contracts, except for any breaches, defaults, terminations, modifications, accelerations, conditions or events which are referred have been cured or waived or which would not be material to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes theretoBusiness.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(adisclosed in SCHEDULE 3.13(A) of the Company Disclosure Schedule Schedules, neither the Company nor any Subsidiary is a party or bound to any (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as collectively, the “"Material Contracts” and each a “Material Contract”), the Company is not a party to any written or oral:"):
(i) collective bargaining agreement or contract with any labor union;
(ii) bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)retirement, employee stock purchase or other plan or arrangement providing for form of deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsplan;
(iiiii) hospitalization insurance or similar plan or practice, whether formal or informal;
(iv) contract for the employment or engagement of any officer, individual employee employee, or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating relative to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide severance pay for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeany such person;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(ivv) agreement or indenture relating to borrowed the borrowing of money in excess of $10,000 or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, lien on any asset or group of the assets of the Company;
(v) Guaranty;
(vi) lease guaranty of any obligation for borrowed money or agreement under which the Company is lessee of or holds or operates any propertyotherwise, real or personal, owned by any other party, except than endorsements made for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000collection;
(vii) lease or agreement under which the Company it is lessor of of, or permits any third party to hold or operate operate, any property, real or personal, owned or controlled by the Companyfor an annual rental in excess of $10,000;
(viii) contract or group of related contracts with the same party for the purchase of products or group services, under which the undelivered balance of affiliated parties the performance of which involves consideration in the aggregate such products and services has a purchase price in excess of $150,00010,000;
(ix) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $10,000;
(x) other contract or group of related contracts with the same party continuing over a period of more than six months from the date or dates thereof, either not terminable by it on 30 days' or less notice without penalty or involving more than $10,000;
(xi) contract which prohibits the Company or any Subsidiary from freely engaging in business anywhere in the world;
(xii) contract relating to the distribution of the Company's or any Subsidiary's products;
(xiii) franchise agreement;
(xiv) contract, agreement or understanding with any shareholder who beneficially owns five percent (5%) or more of the Company Common Stock or with any officer, director or employee (other than purchase and sales orders incurred for employment on customary terms);
(xv) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company or any Subsidiary in connection with the proprietary rights as disclosed on SCHEDULE 3.14 of the Company Disclosure Schedules; or
(xvi) other agreement material to the Company's or any Subsidiary's business or not entered into in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth Except as specifically disclosed on Schedule 5.11(bSCHEDULE 3.13(B) of the Company Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure ScheduleSchedules, (i) no contract or commitment required to be disclosed under such caption has been breached or canceled by the other party; (ii) since the date of the balance sheet included in the Company's Interim Financial Statements, no customer or supplier has indicated that it will stop or decrease the rate of business done with the Company has performedor any Subsidiary, except for changes in all material respects, the ordinary course of the Company's and the Subsidiaries' businesses; (iii) the Company and the Subsidiaries have performed all obligations required to be performed by it them in connection with the contracts or commitments required to be disclosed under such caption and is are not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract contract or instrument commitment required to which be disclosed under such caption; (iv) neither the Company is a party; (ii) no event nor any Subsidiary has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject obligation pursuant to any penalty, right of set-off contract or other charge by the other party thereto for late performance commitment or deliverycommitment set forth under such caption; and (v) as of the date hereof neither the Company nor any Subsidiary has no any knowledge of any breach or anticipated breach by the any other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts contract or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companycommitment set forth under such caption.
(c) Buyer’s counsel Prior to the date of this Agreement, Parent has been supplied with a true and correct copy of each written contract or commitment, and a written description of each oral contract or commitment, disclosed on SCHEDULE 3.13 of the Material Contracts which are referred to on Schedule 5.11 of the Company Disclosure ScheduleSchedules, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly specifically contemplated by this Agreement or and except as set forth on Schedule 5.11(a) the "Contracts Schedule" attached hereto, neither the ------------------ Company nor any of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company its Subsidiaries is not a party to any or bound by, whether written or oral, any:
(i) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, retirement or any other employee benefit form of deferred compensation plan or arrangementany stock purchase, stock option, hospitalization insurance or any collective bargaining agreement similar plan or any other contract with any labor unionpractice, whether formal or severance agreements, programs, policies or arrangementsinformal;
(ii) any contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially any severance agreements providing for an annual salary in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeexcess of $50,000;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, Lien (other than a Permitted Lien, Encumbrances) on any asset of its assets;
(iv) agreements with respect to the lending or group investing of assets of the Companyfunds;
(v) Guarantyroyalty agreements;
(vi) lease or agreement under which the Company is lessee guaranty of or holds or operates any propertyobligation, real or personal, owned by any other party, except than endorsements made for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000collection;
(vii) lease or agreement under which the Company it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $50,000 annually;
(viii) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it (other than leases of equipment in the CompanyOrdinary Course of Business);
(viiiix) contract or group of related contracts with the same party continuing over a period of more than six months from the date or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000dates thereof, other than purchase not terminable by it on 30 days or less notice without penalties and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no involving more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer50,000 annually;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting prohibits it from freely engaging in any business or competing anywhere in the worldworld (other than agreements which prescribe sales territories to the Company); or
(xixxi) any other agreement which is material to its operations it not entered into in the Ordinary Course of Business other than those contracts set forth in the Schedules hereto and business prospects or involves a consideration in excess of $150,000 annuallyspecifically cross-referenced on the Contracts Schedule. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.------------------
(b) All Except as disclosed on the Contracts Schedule, (i) to the ------------------ Knowledge of the contractsCompany, leasesno contract or commitment required to be disclosed on the Contracts Schedule has been breached or cancelled by the other party and the ------------------ Company, agreements its Subsidiaries and instruments set forth or the Seller have no Knowledge of any anticipated breach by any other party to any contract required to be set forth on Schedule 5.11(bthe Contracts Schedule, (ii) of the Disclosure Schedule are valid, binding and enforceable against no customer or supplier has indicated in writing or ------------------ orally to the Company, any of its Subsidiaries or any Seller that it shall stop or decrease the rate of business done with the Company or any of its Subsidiaries or that it desires to renegotiate its contract or current arrangement with the Company of any of its Subsidiaries, (iii) the Company and each of its Subsidiaries has, and to the Company’s knowledge, against the 's Knowledge each other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performedhas, in all material respects, respects performed all the obligations required to be performed by it in connection with the material contracts or commitments required to be disclosed on the Contracts Schedule and is not in default under ------------------ or in breach of norany contract or commitment required to be disclosed on the Contracts Schedule, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) and no event has occurred which with the passage of time or ------------------ the giving of notice or both would result in a defaultdefault or breach thereunder, breach or event of noncompliance by (iv) neither the Company under nor any Material Contracts or instrument to which the Company is a party; (iii) the Company of its Subsidiaries has no any present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject obligation pursuant to any penaltycontract required to be set forth on the Contracts Schedule, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as each agreement ------------------ required to be set forth on the Contracts Schedule is, to the Company's ------------------ Knowledge, a valid and binding obligation of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not thereto other than as a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any result of the Material Contracts on the part of the CompanyCreditors Rights Exception.
(c) Buyer’s counsel The Seller has been supplied provided NES with a true and correct copy of each of the Material Contracts all written contracts which are referred required to be disclosed on Schedule 5.11 of the Disclosure Contracts Schedule, ------------------ in each case together with all amendments, waivers or other changes theretothereto (all of which are disclosed on the Contracts Schedule). The Contracts Schedule ------------------ ------------------ contains an accurate in all material respects and complete description of all material terms of all oral contracts required to be set forth thereon.
Appears in 1 contract
Sources: Purchase Agreement (National Equipment Services Inc)
Contracts and Commitments. (a) Except as expressly specifically contemplated by this Agreement or and except as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)"Contracts Schedule" attached hereto, the Company is not a ------------------ party to any or bound by, whether written or oral, any:
(i) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, retirement or any other employee benefit form of deferred compensation plan or arrangementany stock purchase, stock option, hospitalization insurance or any collective bargaining agreement similar plan or any other contract with any labor unionpractice, whether formal or severance agreements, programs, policies or arrangementsinformal;
(ii) any contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeany severance agreements;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any asset of its assets;
(iv) agreements with respect to the lending or group investing of assets of the Companyfunds;
(v) Guarantylicense or royalty agreements;
(vi) lease or agreement under which the Company is lessee guaranty of or holds or operates any propertyobligation, real or personal, owned by any other party, except than endorsements made for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000collection;
(vii) lease or agreement under which the Company it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $10,000 annually;
(viii) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it (other than leases of equipment in the CompanyOrdinary Course of Business);
(viiiix) contract or group of related contracts with the same party continuing over a period of more than six months from the date or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000dates thereof, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification not terminable by it on 30 days or agreement with respect to any intangible property (including any Intellectual Property Rights) granted less notice without penalties or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no involving more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer10,000;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting prohibits it from freely engaging in any business or competing anywhere in the world; or
(xixxi) any other agreement which is material to its operations and business prospects it whether or involves a consideration not entered into in excess the Ordinary Course of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsBusiness.
(b) All Except as disclosed on the Contracts Schedule, (i) no contract ------------------ or commitment required to be disclosed on the Contracts Schedule has been ------------------ breached or cancelled by the other party and the Sellers have no knowledge of the contracts, leases, agreements and instruments set forth or any anticipated breach by any other party to any contract required to be set forth on Schedule 5.11(bthe Contracts Schedule, (ii) no customer or supplier has indicated in ------------------ writing or orally to the Company or any Seller that it shall stop or decrease the rate of business done with the Disclosure Schedule are valid, binding and enforceable against Company or that it desires to renegotiate its contract or current arrangement with the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (iiii) the Company has performed, in performed all material respects, all the obligations required to be performed by it in connection with the contracts or commitments required to be disclosed on the Contracts Schedule ------------------ and is not in default under or in breach of norany contract or commitment required to be disclosed on the Contracts Schedule, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) and no event has occurred which with ------------------ the passage of time or the giving of notice or both would result in a defaultdefault or breach thereunder, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iiiiv) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject obligation pursuant to any penaltycontract required to be set forth on the Contracts Schedule, right of set-off or other charge by the other party thereto for late performance or delivery; and (vvi) each agreement required to be set ------------------ forth on the Contracts Schedule is legal, valid, binding, enforceable and in ------------------ full force and effect and will continue as such following the consummation of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companytransactions contemplated hereby.
(c) Buyer’s counsel has been supplied The Sellers have provided the Purchaser with a true and correct copy of each of the Material Contracts all written contracts which are referred required to be disclosed on Schedule 5.11 of the Disclosure Contracts Schedule, in each case together with all amendments, waivers or other ------------------ changes theretothereto (all of which are disclosed on the Contracts Schedule). The ------------------ Contracts Schedule contains an accurate and complete description of all material ------------------ terms of all oral contracts required to be set forth thereon.
Appears in 1 contract
Sources: Stock Purchase Agreement (National Equipment Services Inc)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a3.13, neither of Chouteau or the Subsidiaries (i) of the Disclosure Schedule is a party to any collective bargaining agreement or contract with any labor union, (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company ii) is not a party to any written or oral:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other oral contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans any consulting services or to officersseverance pay for any person, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract is a party to any written or oral agreement or understanding to repurchase assets previously sold (or to indemnify or otherwise compensate the purchaser in respect of such assets), except for securities sold under which a repurchase agreement providing for a repurchase date 30 days or less after the Company has advanced or loaned any other Person amounts;
purchase date, (iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing is a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viiiA) contract or group of related contracts with the same party for the purchase or group sale of affiliated parties products or services, under which the performance undelivered balance of which involves consideration in the aggregate such products and services has a purchase price in excess of $150,00050,000 for any individual contract, or (B) other contract or group of related contracts with the same party continuing over a period of more than purchase six months from the date or dates thereof, which is not entered into in the ordinary course of business and sales orders incurred is either not terminable by it on 30 days' or less notice without penalty or involves more than $50,000 for any individual contract, or (C) other agreement material to the business of Chouteau and the Subsidiaries, taken as a whole, which is not entered into in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (iiv) Intellectual Property Rights owned by a third party has any commitments for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration capital expenditures in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements25,000.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth Except as disclosed on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule3.13, (i) to the Company best knowledge of Chouteau and the Subsidiaries, since the date of the Latest Balance Sheets, no customer has performedindicated that it will stop or decrease the rate of business done with Chouteau or the Subsidiaries (except for changes in the ordinary course of such business) that would, individually or in all the aggregate, have a material respectsadverse effect on the business, operations or financial condition of Chouteau and the Subsidiaries, taken as a whole; (ii) each of Chouteau and the Subsidiaries has performed all obligations required to be performed by it and is not in default under or in breach of nor, as of prior to the date hereofhereof in connection with the contracts or commitments set forth on Schedule 3.13, and neither of Chouteau or the Subsidiaries is in receipt of any claim of default or breach under any Material Contract contract or instrument commitment set forth on Schedule 3.13, except for any failures to perform, breaches or defaults which would not, individually or in the Company is aggregate, have a party; (ii) no event has occurred which with material adverse effect on the passage business, operations or financial condition of time or Chouteau and the giving of notice or both would result in Subsidiaries, taken as a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a partywhole; (iii) neither of Chouteau or the Company Subsidiaries has no any present expectation or intention of not fully performing all such obligationsany material obligation pursuant to any contract or commitment set forth on Schedule 3.13; and (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no best knowledge of any Chouteau and the Subsidiaries, there has been no cancellation, breach or anticipated breach by the any other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts contract or commitment set forth on Schedule 3.13, except for any cancellation, breach or anticipated breach which would not, individually or in the performance of which could reasonably be expected to aggregate, have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts material adverse effect on the part business, operations or financial condition of Chouteau and the CompanySubsidiaries, taken as a whole.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) 11.1 No member of the Disclosure Schedule Group is a party to nor does it have or has any liability (all written present or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”future) under:
(A) any guarantee, indemnity (other than those given in connection with infringement of Intellectual Property Rights), surety relationship or letter of credit (other than as described in paragraph 15 of this Schedule 3);
(B) other than in connection with the Company Properties, any contract for rent, lease, hire, hire purchase, credit sale, conditional sale or purchase by instalments calling for payments in excess of L 2,500 per annum;
(C) any agency, distributorship or management agreement in relation to which revenues, commissions or expenses are in excess of L 10,000 per annum;
(D) any contract or arrangement which, restricts its freedom to carry on its business in any part of the world in such manner as it may think fit or the ability to transfer the whole or any part of its business;
(E) any joint venture agreement or arrangement, partnership rights or obligations or any other similar agreement or arrangement;
(F) any contract or arrangement which relates to matters outside the ordinary business of that member of the Group;
(G) any contract or arrangement in which any director of any member of the Group or any person connected with any such director is interested, either directly or indirectly, but excluding any contract or arrangement relating to either the terms upon which such director is employed or to Vested Options, Accelerated Options and Unvested Options;
(H) any contract or arrangement (other than a contract relating to Intellectual Property Rights) which cannot be terminated by that member on three months' notice or less without payment of compensation of any special fees; or
(I) any contract or arrangement which according to its terms can be terminated in the event of any change in the underlying ownership or control of that member, or where the terms of such contract or arrangement provide for a material amendment in terms upon such change.
11.2 So far as each of the Management Warrantors is aware no member of the Group is under any obligation, nor is any of them a party to any written or oral:
(i) pensioncontract, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects cannot readily be fulfilled or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it on time and is not in default under without undue or in breach unusual expenditure of normoney or effort.
11.3 Copies of each agreement, as document or other material evidencing, summarising or otherwise containing the terms and conditions of any material rights or obligations of any member of the date hereofGroup, any contracts or arrangements which are of a material value the Group in terms of expenditure or revenue expectations and any contracts that are of fundamental importance to the activities of any member of the Group are attached to the Disclosure Letter.
11.4 Except as disclosed in the Disclosure Letter, no member of the Group has given any guarantee, indemnity, warranty, or made any representation (including by way of side letter or ancillary agreement), in receipt respect of goods or services supplied or contracted to be supplied by it or accepted any liability or obligation that would apply after any such goods or services had been supplied by it, including without limitation, in respect of the functionality or future functionality of any claim products or services.
11.5 So far as each of default the Management Warrantors is aware there is no breach, invalidity, or breach under grounds for determination, rescission, avoidance or repudiation of any Material Contract or instrument contract to which any member of the Company Group is a party; (ii) party and no event notice has occurred been received by any member of the Group alleging any of the foregoing.
11.6 No member of the Group has outstanding any bid or tender or sale or service proposal which with the passage of time or the giving of notice or both is substantial in relation to its business and, if accepted, would be reasonably likely to result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companyloss.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Share Purchase Agreement (Veritas Software Corp /De/)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule in SCHEDULE 2.19 (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” "Contracts and each a “Material Contract”Commitments"), the Sellers and each Acquired Company is not have provided Buyer with a party to any written or oral:
(i) pensioncomplete, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultantsaccurate list of, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “atcopies of each of the following (each a "Company Commitment") to which an Acquired Company is a party or by which any of its properties is bound and which presently remains executory in whole or in any part: (i) each partnership; or joint venture agreement; (ii) each guaranty or suretyship, indemnification or contribution agreement or performance bond (other than any Guaranty limited as to recourse to no more than Five Thousand Dollars ($5,000) and any Guaranty of any automobile or other vehicle retail installment sales contract entered into and sold to a financial institution in the ordinary course of business); (iii) each instrument, agreement or other obligation evidencing or relating to indebtedness of an Acquired Company involving more than Twenty-will” employment Five Thousand Dollars ($25,000) in any single case, or to money lent or to be lent to another Person involving more than One Hundred Thousand Dollars ($100,000) in the aggregate, other than any of its dealership customers in connection with the purchase, or the refinancing of the purchase, of any vehicle; (iv) each contract to purchase or sell real property; (v) each agreement with brokers of motor vehicles or sales or commission agents, public relations or advertising agencies, accountants or attorneys (other than in connection with this Agreement and maybe be terminated by the Company upon less transactions contemplated hereby) involving total payments within any twelve (12) month period in excess of Ten Thousand Dollars ($10,000) and which is not terminable without penalty and no more than thirty (30) days’ ' prior notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
; (vi) lease or agreement under which the Company is lessee of or holds or operates each Related Party Agreement involving total payments within any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
twelve (vii12) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate month period in excess of Ten Thousand Dollars ($150,000, other than purchase 10,000) and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less without penalty on no more than thirty (30) days’ notice without penalty ' prior notice; (vii) each contract containing any noncompetition agreement, covenant or undertaking; (viii) each Dealer Agreement to which an Acquired Company is a party and involves each other agreement providing for the purchase from a consideration in excess supplier of $150,000 annually;
all or substantially all the requirements of an Acquired Company of a particular product or service; or (xviix) contract regarding voting, transfer each other agreement or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement commitment not made in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form ordinary course of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsAcquired Companies.
(b) All True, correct and complete copies of all written Company Commitments have heretofore been delivered or made available to Buyer. Except as accurately set forth in SCHEDULE 2.19: (i) there are no existing or asserted defaults, events of default or events, occurrences, acts or omissions that, with the giving of notice or lapse of time or both, would constitute defaults or events of default under any Company Commitment material to the Acquired Companies by an Acquired Company or, to the Knowledge of the contractsSellers or the Acquired Companies, leasesany other party thereto; and (ii) no penalties have been incurred, agreements nor are amendments pending, with respect to the Acquired Companies Commitments material to the Acquired Companies. All Company Commitments are in full force and instruments set forth or required to be set forth on Schedule 5.11(b) effect and are valid and enforceable obligations of the Disclosure Schedule are valid, binding and enforceable against the Acquired Company, and to the Company’s knowledgeKnowledge of the Acquired Companies, against the other party thereto, parties thereto in accordance with their respective termsterms and no defenses, and shall be in full force and effect without penalty in accordance with their terms upon consummation off-sets or counterclaims have been asserted or, to the Knowledge of the transactions contemplated herebyAcquired Companies, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to may be performed made by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to (other than by an Acquired Company), nor has an Acquired Company waived any penaltyrights thereunder, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) except as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are partiesdescribed in SCHEDULE 2.19. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.18
(c) Buyer’s counsel has been supplied with Except as disclosed in SCHEDULE 2.19 or contemplated hereby or by any other Transaction Document to which an Acquired Company or Stockholder is a true party, no Acquired Company or Sellers have received notice of any plan or intention of any other party to any Company Commitment that is Material to the Acquired Companies to exercise any right to cancel or terminate that Company Commitment, and correct copy neither the Acquired Companies nor Sellers knows of each any condition or state of facts which would justify the Material Contracts which are referred to on Schedule 5.11 exercise of the Disclosure Schedule, together with all amendments, waivers or other changes theretosuch a right.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on for contracts, commitments, plans, agreements, arrangements, understandings and licenses described in Schedule 5.11(a2.16(a) of the Disclosure Schedule hereto (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), neither the Company nor any of its Subsidiaries is not a party to or subject to any written or oral:Contract (excluding purchase orders entered into in the ordinary course of business):
(i) pensionfor the purchase of any commodity, profit sharingmaterial, stock option equipment or asset (other than except for purchase orders in the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)ordinary course of business, employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultantsconsistent with past practice, 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 arrangementscontracts involving payments of less than $50,000 each);
(ii) contract for the employment or engagement creating any obligations of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less or any of its Subsidiaries after the Base Balance Sheet Date which call for payments of more than thirty (30) days’ notice$15,000 during any month for agreements without a fixed term or more than $50,000 over the term of the agreement for agreements with a fixed term;
(iii) contract under which providing for the Company has advanced purchase of all or loaned any other Person amountssubstantially all of its requirements of a particular product from a supplier;
(iv) agreement which by its terms does not terminate or indenture relating to borrowed money is not terminable without premium or other Indebtedness penalty by the Company or the mortgagingany of its Subsidiaries, pledging as applicable (or otherwise placing a Lien, other than a Permitted Lien, on any asset their respective successors or group assigns) upon notice of assets of the Companyninety (90) days or less;
(v) Guaranty;
(vi) lease for the sale or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do its products not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred made in the ordinary course of business;
(vi) with any sales agent or distributor of products of the Company or any of its Subsidiaries;
(vii) containing covenants limiting the freedom of the Company or any of its Subsidiaries to compete in any line of business or with any person or entity;
(viii) for a license or franchise (as licensor or licensee or franchisor or franchisee);
(ix) assignment, license, indemnification involving any arrangement or agreement obligation with respect to any intangible property (including any Intellectual Property Rights) granted the return of inventory or made merchandise other than on account of a defect in condition, or failure to conform to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyerapplicable contract;
(x) contract concerning with the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customersUnited States government;
(xi) contract pursuant which contains covenants as to which (i) noncompetition or nonsolicitation restricting or for the benefit of the Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or any of its Subsidiaries; or (iiexcluding Contracts entered into in the ordinary course of business consistent with past practices) Intellectual Property Rights owned by a third party which contains covenants as to nondisclosure or confidentiality restricting or for development tools are used to develop the benefit of the Company Software;or its Subsidiaries; or
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and the assets or business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type Company or any of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsits Subsidiaries.
(b) All Each of the contracts, leasescommitments, plans, agreements and instruments set forth licenses to which the Company or required any of its Subsidiaries is a party or to be set forth which the Company or any of its Subsidiaries is subject (whether written or oral), including those listed on Schedule 5.11(b2.16(a) of the Disclosure Schedule are (each a “Contract”) is valid, binding and enforceable against the CompanyCompany and its Subsidiaries, and as applicable, and, to the Knowledge of the Company’s knowledge, against the other party parties thereto; the Company and its Subsidiaries, as applicable, is in accordance material compliance with their respective terms, all terms and shall be in full force conditions of each Contract; and effect without penalty in accordance with their terms upon consummation neither the Company nor any of the transactions contemplated hereby, subject to its Subsidiaries has given or received notice of any alleged violation of or default under any such Contract.
(ic) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule2.16(c), (i) since January 1, 2007, neither the Company nor any of its Subsidiaries have experienced any termination, cancellation, limitation or modification or material and adverse change in any business relationship with any material supplier or material customer, nor has performedthe Company or any of its Subsidiaries received notice or otherwise have Knowledge that any material customer or material supplier intends to cease, in all material respectsor materially reduce or change the terms of, all obligations required doing business with the Company or any of its Subsidiaries or to be performed by it and is not in default under terminate any agreement with the Company or any of its Subsidiaries, where any such action, individually or in breach of northe aggregate, as of the date hereof, in receipt of any claim of default has had or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts Schedule 2.16(c) lists every material customer or requests to renegotiate or outstanding rights to renegotiate, any terms of any supplier of the Material Contracts on Company and each of its Subsidiaries and the part amount of business with that customer. For purposes hereof, (i) a supplier is material if during fiscal 2005, 2006 or 2007, it accounted for more than five percent (5%) by value of the orders of the Company and its Subsidiaries, taken as a whole, for purchase of all their raw materials and other products essential to their manufacturing processes for such year, and (ii) a customer is material if it accounted for more than three percent (3%) by value of the orders of the Company and its Subsidiaries, taken as a whole, in either fiscal 2005, 2006 or 2007.
(d) All of the Company’s sales and purchase commitments were made in the ordinary course of business, consistent with past practices.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on the attached Dade Contracts Schedule 5.11(a) ----------------------- (which Dade Contracts Schedule indicates the parties thereto), neither Dade nor ----------------------- any of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company other Dade Entities is not a party to any written oral or oralwritten:
(i) pensionplan or other Contract providing for bonuses, pensions, options, stock purchases, deferred compensation, retirement payments, profit sharing, stock option (other than collective bargaining or the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultantslike, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract Contract with any labor union, or severance agreements, programs, policies or arrangementsunion involving in any such case in excess of $414,000;
(ii) contract management agreement or other Contract for the employment or engagement of any officer, partner, individual employee or other Person person on a full-time, part-time, consulting, contractor part- time or consulting basis or providing for the payment of any cash or other basis compensation or relating to loans to officers, directors benefits upon the sale of the Dade Business or Affiliates, other than a change of control (whether upon the offer letters substantially occurrence of any additional events or conditions or otherwise) involving in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeany such case in excess of $414,000 or otherwise prohibiting competition;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture Contract relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a LienLien on any of the Dade Assets, other than a Dade Permitted Lien, on any asset Liens;
(iv) Contract with respect to the lending or group investing of assets of the Companyfunds involving more than $517,000;
(v) Guarantylicense or royalty agreement involving more than $517,000;
(vi) lease guaranty, suretyship, letter of comfort or agreement under which similar undertaking involving more than $517,000 of any obligation for borrowed money or that otherwise relates to the Company is lessee of or holds or operates any propertyDade Assets, real or personal, owned by any other party, except than endorsements made for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000collection;
(vii) lease Contract or agreement under which group of related Contracts with the Company is lessor same party for the purchase or sale of commodities, supplies, products or permits any third party to hold other personal property or operate any property, real for the furnishing or personal, owned or controlled by the Companyreceipt of services having a selling price in excess of $1,034,000;
(viii) contract Contract that would impose any significant restrictions upon the ability of any Dade Entity or Acquired Entity from freely engaging in the Dade Business anywhere in the world;
(ix) Contract relating to the manufacturing, distribution, marketing, advertising or promotion of products or services (whether by the Dade Business or for the Dade Business) involving in any such case more than $1,034,000;
(x) Contract relating to the acquisition or sale of a business (or any portion thereof) having a fair market value in excess of $517,000;
(xi) other Contract or group of related contracts Contracts with the same party involving a potential liability to any party thereto of more than $1,034,000;
(xii) other Contracts material to the Dade Business, whether or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred not entered into in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect the absence of which would reasonably be likely to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for have an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no adverse effect involving more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements1,034,000.
(b) All Except as specifically disclosed in the attached Dade ---- Contracts Schedule or as would not reasonably involve liabilities or obligations ------------------ in excess of the contracts$1,034,000, leases, agreements and instruments set forth or (i) no Contract required to be set forth disclosed on the Dade ---- Contracts Schedule 5.11(b) of the Disclosure Schedule are validhas been (or, binding and enforceable against the Company, and by giving effect to the Company’s knowledgeClosing, against will be) ------------------ breached in any respect or has been (or, to Dade's Knowledge, after giving effect to the Closing, will be) canceled by the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation since the date of the transactions contemplated herebyDade Latest Balance Sheet, subject none of the significant customers, suppliers, outside service providers or sources of referral of the Dade Business has notified Dade or any of the other Dade Entities in writing that it will stop or decrease the rate of business done with or referred to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtorsDade Business, and (ii) rules Dade and the other Dade Entities have performed all of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of their obligations under the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations Contracts required to be performed by it and listed on the Dade Contracts Schedule and, to ----------------------- Dade's Knowledge, there is not in default under or in no breach of nor, as of the date hereof, in receipt of or default by any claim of default or breach other party under any Material Contract or instrument to which the Company any of them is a party; (ii) no party or any event has occurred which with the passage of time or the which, upon giving of notice or both lapse of time or both, or upon and after giving effect to the transactions contemplated by the Combination Documents, would result in constitute such a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companydefault.
(c) Buyer’s counsel has been supplied with a A true and correct copy of each of the Material all Contracts which are referred to on Schedule 5.11 of the Disclosure attached Dade Contracts Schedule, together with all amendments, ----------------------- exhibits, attachments, waivers or other changes thereto, have been made available to Hoechst (or, in the case of any oral Contract or Contract withheld due to confidentiality requirements, a summary of the material terms of such Contract has been supplied to Hoechst).
Appears in 1 contract
Sources: Agreement and Plan of Combination (Dade International Inc)
Contracts and Commitments. (a) Except as expressly specifically contemplated by this Agreement or and except as set forth on in Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)4.13, the Company is not neither a party to any nor bound by, ------------- whether written or oral, any:
(i) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, retirement or any other employee benefit form of deferred compensation plan or arrangementany stock purchase, stock option, hospitalization insurance or any collective bargaining agreement similar plan or any other contract with any labor unionpractice, whether formal or severance agreements, programs, policies or arrangementsinformal;
(ii) contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeany severance agreements;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any asset of its assets;
(iv) agreements with respect to the lending or group investing of assets of the Companyfunds;
(v) Guarantylicense or royalty agreements;
(vi) lease or agreement under which the Company is lessee guaranty of or holds or operates any propertyobligation, real or personal, owned by any other party, except than endorsements made for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000collection;
(vii) lease or agreement under which the Company it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $2,000 annually;
(viii) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Companyit;
(viiiix) contract or group of related contracts with the same party for the purchase or group sale of affiliated parties supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of which involves consideration in the aggregate more than one year (except if such contracts do not involve a sum in excess of $150,000, other than purchase and sales orders incurred 2,000 annually) or involves a sum in the ordinary course excess of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer2,000;
(x) contract concerning or group of related contracts with the provision same party continuing over a period of co-location and related services to more than six months from the Companydate or dates thereof, which services are used to fulfill obligations to provide software and data hosting services to customersnot terminable by it on 30 days or less notice without penalties or involving more than $2,000;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded prohibits it from freely engaging in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Softwarebusiness anywhere in the world;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant contract relating to the Company’s standard form distribution, marketing or sales of customer agreement in the form delivered to Buyerits products;
(xiii) agreement under agreements, contracts or understandings pursuant to which it has granted any Person any registration rights (including demand or piggyback registration rights);the Company subcontracts work to third parties; or
(xiv) sales, distribution, manufacturing, supply other agreement material to it whether or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement entered into in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form Ordinary Course of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsBusiness.
(b) All Except as disclosed in Schedule 4.13, (i) to the Knowledge ------------- of the contractsCompany, leases, agreements and instruments set forth no contract or commitment required to be disclosed on Schedule -------- 4.13 has been breached or cancelled by the other party since December 31, 1998, ---- and the Company has no Knowledge of any anticipated breach by any other party to any contract set forth on Schedule 5.11(b4.13, (ii) since December 31, 1998, no ------------- customer or supplier has indicated in writing or orally to the Company or any Seller that it shall stop or decrease the rate of the Disclosure Schedule are valid, binding and enforceable against business done with either Company or that it desires to renegotiate its contract with the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (iiii) the Company has performed, in performed all material respects, all the obligations required to be performed by it in connection with the contracts or commitments required to be disclosed on Schedule 4.13 and is not in default under or in breach of norany contract or ------------- commitment required to be disclosed on the Schedule 4.13, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) and no event has ------------- occurred which with the passage of time or the giving of notice or both would result in a defaultdefault or breach thereunder, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iiiiv) the Company has no does not have a present expectation or intention of not fully performing all any obligation pursuant to any contract set forth on Schedule 4.13, (vi) each agreement is legal, valid, ------------- binding, enforceable and in full force and effect and will continue as such obligations; following the consummation of the transactions contemplated hereby, and (ivvii) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof commitment obligating the Company has no knowledge to process or deliver products or perform services shall result in a loss to the Company upon completion of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companyperformance.
(c) Buyer’s counsel has been supplied Schedule 4.13 lists the ten largest customers and the ten ------------- largest suppliers of the Company during the 12-month period ended September 30, 1999.
(d) Sellers have provided Buyer with a true and correct copy of each of the Material Contracts all written contracts which are referred required to be disclosed on Schedule 5.11 of the Disclosure Schedule4.13, in ------------- each case together with all amendments, waivers or other changes theretothereto (all of which are disclosed on Schedule 4.13). Schedule 4.13 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 (Onepoint Communications Corp /De)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement Schedule 2.9 hereto lists the following agreements, whether oral or as set forth on Schedule 5.11(a) written, to which FD is a party, which are currently in effect, and which relate to the operation of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company is not a party to any written or oral:
FD’s business: (i) collective bargaining agreement or contract with any labor union; (ii) bonus, pension, profit sharing, stock option retirement or other form of deferred compensation plan; (iii) hospitalization insurance or other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)welfare benefit plan or practice, employee whether formal or informal, (iv) stock purchase or other plan or arrangement providing for deferred or other compensation stock option plan; (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(iiv) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans severance pay for any such Person; (vi) confidentiality agreement; (vii) contract, agreement or understanding relating to officersthe voting of FD Common Stock or the election of directors of FD; (viii) promissory note, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, lien on any asset or group of the assets of the Company;
FD; (vix) Guaranty;
guaranty of any obligation for borrowed money or otherwise; (vix) lease or agreement under which the Company FD 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 payments do not exceed exceeds $150,000;
50,000; (viixi) lease or agreement under which the Company FD is lessor of of, or permits any third party to hold or operate operate, any property, real or personal, owned for which the annual rental exceeds $50,000; (xii) contract which prohibits FD from freely engaging in business anywhere in the world; (xiii) license agreement or controlled agreement providing for the payment or receipt of royalties or other compensation by FD in connection with the Company;
intellectual property rights listed in Schedule 2.19(b) hereto; (viiixiv) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate commitment for capital expenditures in excess of $150,000, 50,000; (xv) agreement for the sale of any capital asset; (xvi) non-compete agreements; or (xvi) any other than purchase and sales orders incurred agreement which is either material to FD’s business or was not entered into in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the CompanyTo FD’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company FD has performed, in all material respects, all the obligations required to be performed by it in connection with the contracts or commitments it is a party to or obliged to perform, including without limitation those required to be disclosed in Schedule 2.9 hereto (except as disclosed in Schedule 2.9 hereto) and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract contract or instrument commitment required to which the Company is a partybe disclosed under such caption; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company FD has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject material obligation pursuant to any penalty, right of set-off contract or other charge by the other party thereto for late performance or deliverycommitment required to be disclosed under such caption; and (v) as of the date hereof the Company FD has no knowledge of any breach or anticipated breach by the any other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably contract or commitment required to be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companydisclosed under such caption.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) a. Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of under the caption "Contracts" in the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)Letter, the Company Antigua is not a party to any written or oral:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) bonus, pension, profit sharing, retirement, or other form of deferred compensation plan, (iii) hospitalization insurance or similar plan or practice, whether formal or informal, (iv) contract for the employment or engagement of any officer, individual employee employee, or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating 16 relative to loans to officersseverance pay for any such person, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(ivv) agreement or indenture relating to borrowed the borrowing of money in excess of $10,000 or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lienlien on any of the assets of Antigua, (vi) guaranty of any obligation for borrowed money or otherwise, other than a Permitted Lienendorsements made for collection, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company it is lessor of of, or permits any third party to hold or operate operate, any property, real or personal, owned or controlled by the Company;
with aggregate remaining rental payments in excess of $10,000, (viii) contract or group of related contracts with the same party for the purchase of products or group services, under which the undelivered balance of affiliated parties the performance of which involves consideration in the aggregate such products and services has a purchase price in excess of $150,00025,000, (ix) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $25,000, (x) other contract or group of related contracts with the same party continuing over a period of more than six months from the date or dates thereof, other than purchase and contracts terminable by it on thirty days' or less notice without penalty or involving less than $25,000, (xi) contract which prohibits Antigua from freely engaging in business anywhere in the world, (xii) sales orders incurred representative or distribution agreement, or any other contract relating to the sale or distribution of Antigua's products, (xiii) contract, agreement or understanding with any Insider, (xiv) license agreement or other agreement providing for the payment or receipt of royalties or other compensation by or to Antigua, or (xv) other agreement material to Antigua's business or not entered into in the ordinary course of business;. 17
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to b. Except as specifically disclosed under the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement caption "Contracts" in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure ScheduleLetter, (i) to the Company knowledge of the Shareholders, no contract or commitment required to be disclosed under such caption has performedbeen breached or canceled by the other party, (ii) since December 31, 1996, no customer or supplier has notified Antigua that it will stop or materially decrease the rate of business done with Antigua, except for changes in the ordinary course of Antigua's business, (iii) Antigua has performed in all material respects, respects all obligations required to be performed by it in connection with the contracts or commitments required to be disclosed under such caption and is not in default under or in breach of nor, as of the date hereof, in receipt of any written claim of default or breach under any Material Contract contract or instrument commitment required to which the Company is a party; be disclosed under such caption, and (iiiv) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company Antigua has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject obligation pursuant to any penalty, right of set-off contract or other charge by the other party thereto for late performance or delivery; and (v) as of commitment set forth under such caption.
c. Prior to the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contractsthis Agreement, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel SEC has been supplied with a true and correct copy of each written contract or commitment, and a written description of the Material Contracts which are each oral contract or commitment, referred to on Schedule 5.11 of under the caption "Contracts" in the Disclosure ScheduleLetter, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(aSCHEDULE 3.14(a) attached hereto contains a true, complete and correct list and description of the Disclosure Schedule (following contracts and agreements, including all amendments, modifications and supplements thereto, whether written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)(collectively, the Company is "CONTRACTS", which term does not a party to any written or oral:include Leases):
(i) pensionall loan agreements, profit sharingindentures, stock option (mortgages and guaranties or other than documents evidencing or creating liability or indebtedness for borrowed money to which the Company Options granted under or any of the Subsidiaries is a party or by which the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, of the Subsidiaries or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsof their property is bound;
(ii) contract for the employment all pledges, conditional sale or engagement of any officertitle retention agreements, individual employee or other Person on a full-timesecurity agreements, part-timeequipment lease obligations, consulting, contractor or other basis or relating personal property leases and lease purchase agreements to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by which the Company upon less than thirty (30) days’ noticeor any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of their property is bound;
(iii) contract under all contracts, agreements and purchase orders to which the Company or any of the Subsidiaries is a party or by which the Company or any of the Subsidiaries or any of their property is bound that are not terminable within sixty (60) days (or less) prior notice and without payment of any termination fee or penalty or any amounts due at termination in excess of $25,000, which (A) involve payments or receipts by the Company or any of the Subsidiaries within any year of more than $10,000 in the case of any single contract, agreement or purchase order under which full performance (including payment) has advanced not been rendered by all parties thereto or loaned (B) which may materially adversely affect the condition (financial or otherwise) or the properties, assets, business or prospects of the Company or any other Person amountsof the Subsidiaries;
(iv) agreement all collective bargaining agreements, employment and consulting agreements, severance agreements, executive compensation plans, bonus plans, deferred compensation agreements, pension plans, retirement plans, employee stock option or indenture relating stock purchase plans and group life, health and accident insurance and other employee benefit plans, agreements, arrangements or commitments to borrowed money which the Company or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the CompanySubsidiaries is a party or by which the Company or any of the Subsidiaries or any of their property is bound;
(v) Guarantyall leases, whether operating, capital or otherwise, under which the Company or any of the Subsidiaries is lessor or lessee which involve payments or receipts of more than $5,000 per year in the case of any single lease;
(vi) lease or agreement under partnership agreements and joint venture agreements to which the Company or any Subsidiary is lessee of or holds or operates any property, real or personal, owned by any other a party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits agreements granting to any third party a first-refusal, first-offer or other right to hold purchase or operate acquire any property, real or personal, owned or controlled by of the CompanyProperties;
(viii) contract agreements materially limiting or group restricting the ability of related contracts with the same party Company or group any Subsidiary or, to the Company's and Stockholder's knowledge, any employee of affiliated parties the performance of which involves consideration Company or any Subsidiary, to enter into or engage in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course any market or line of business;
(ix) assignmentagreements with federal, licensestate, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Companylocal, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty regulatory or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyergovernmental entity;
(x) contract concerning agreements containing a provision to indemnify any person or entity or assume any tax, environmental or other liability (other than the provision of co-location various purchase and related services sale agreements pursuant to which the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;Properties were acquired); and
(xi) contract pursuant any agreement to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire enter into any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsforegoing.
(b) All True and complete copies of the contracts, leases, contracts and agreements disclosed pursuant to SECTION 3.14(a) hereof and instruments set forth or required the memberships disclosed pursuant to be SECTION 3.14(d) have been made available to the Buyer.
(c) Except as set forth on Schedule 5.11(bSCHEDULE 3.14(a):
(i) each Contract is a valid and binding agreement of the Disclosure Schedule are validCompany or the relevant Subsidiary, binding and enforceable against the Company, and to Company or the Company’s knowledge, against the other party thereto, relevant Subsidiary in accordance with their respective termsits terms and, to Stockholder's knowledge, is valid and shall be binding on the other parties thereto and in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and its respective terms; and
(ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and or the relevant Subsidiary is not in breach of or default under any Contract, which default could have a material effect on the conduct of the business of the Company or the relevant Subsidiary and to the Company's and Stockholder's knowledge, no other party thereto is in breach thereof or default thereunder.
(d) As of northe date hereof, there are no membership contracts, licenses, rights to use or other agreements in effect with respect to any of the golf courses operated by the Company or the Subsidiaries on any of the Real Estate or Leased Real Property (a "GOLF COURSE") to any party, other than the memberships described on SCHEDULE 3.14(d) (the "MEMBERSHIPS") and the events identified on SCHEDULE 3.14(e); and
(e) SCHEDULE 3.14(e) sets forth all tournaments, banquets or similar events which, pursuant to a contract or otherwise, are scheduled to be held at any of the Golf Courses after the scheduled Closing Date, the proposed date of each such event and the amount of any deposit made with respect to such event.
(f) SCHEDULE 3.14(f) sets forth all agreements referenced in the Partnership Agreement (as defined in SECTION 7.07(m) hereof) which remain in force or effect as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (KSL Recreation Group Inc)
Contracts and Commitments. (a1) Except as expressly contemplated by this Agreement or as set forth on the Contracts Schedule 5.11(a) attached hereto, neither Seller nor any of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company Subsidiaries is not a party to any written or oral:
any: (i) collective bargaining agreement or contract with any labor union; (ii) bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase retirement or other plan or arrangement providing for form of deferred or other compensation plan; (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(iiiii) contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
consulting basis; (iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, lien on any asset or group material portion of assets of the Company;
such entity's assets; (v) Guaranty;
guaranty of any obligation for borrowed money or other material guaranty; (vi) lease or agreement under which the Company it is lessee of of, or holds or operates any property, real or personal, personal property owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed exceeds $150,000;
50,000; (vii) lease or agreement under which the Company it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by personal property for which the Company;
annual rental exceeds $50,000; (viii) contract or group of related contracts with the same party for the purchase of products or group services, under which the undelivered balance of affiliated parties the performance of which involves consideration in the aggregate such products or services has a purchase price in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business;
100,000; (ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software contract or group of related software licenses contracts with the same party for the sale of no more than products or services under which the undelivered balance of such products or services has a sales price in excess of $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
100,000; or (x) contract concerning or arrangement with any director, equityholder or other Affiliate including arrangements governing the provision of co-location and related services right to use assets used in the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
Business; (xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, confidentiality agreement restricting the Sellers or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
the Subsidiaries from disclosing any information (xii) warranty confidentiality agreement with respect the Sellers or the Subsidiaries Known to its services rendered Sellers restricting others from disclosing any information regarding the Sellers or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
Subsidiaries; (xiii) non-compete agreement under which it has granted any Person any registration rights (including demand restricting the Sellers or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it Subsidiaries from freely engaging in any business or competing anywhere in the world; or
(xixxiv) any non-compete agreement with the Sellers or the Subsidiaries Known to Sellers restricting others from freely engaging in business in competition with the Sellers or the Subsidiaries anywhere in the world; (xv) power of attorney or agency agreement; (xvi) contract for contingent payments relating to acquisitions; or (xvii) other agreement which is contract that remains material to its operations the Sellers and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 Subsidiaries as of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsdate hereof.
(b2) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) the Contracts Schedule, neither Seller nor any of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and Subsidiaries is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) and no event has occurred which which, with the passage of time or the giving of notice notice, or both both, would result in constitute a default, breach or event of noncompliance by the Company default has occurred) under any Material contract listed on the Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of Schedule, except where such default would not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts Effect and none of the Sellers or requests to renegotiate the Subsidiaries has provided or outstanding rights to renegotiate, received any terms written notice of any of default under the Material Contracts on the part of the CompanyLoan and Security Agreement.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Integra Lifesciences Corp)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)4.15 attached hereto, the Company is not a party to or bound by any written or oral:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)option, employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses to its current or other remuneration and whether in cash former directors, officers or otherwise), to employees, former employees or consultants, or any other employee benefit plan plan, arrangement or arrangementpractice, whether formal or any informal;
(ii) collective bargaining agreement or any other contract with any labor union, or severance agreements, with employees at the executive management committee level since December 31, 2001, programs, policies or arrangements;
(iiiii) management agreement or contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor consulting or other basis (A) providing annual cash or relating other compensation in excess of $250,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby or (C) otherwise restricting its ability to loans to officers, directors terminate the employment of any employee at anytime for any lawful reason or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced no reason without penalty or loaned any other Person amountsliability;
(iv) contract or agreement involving any Governmental Agency involving more than $200,000 other than in the ordinary course of business;
(v) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any material asset or material group of assets of the Company;
(v) GuarantyCompany or any letter of credit arrangements;
(vi) guarantee, other than endorsements made for collection in the ordinary course of business consistent with past custom and practice;
(vii) lease or agreement under which the Company is (A) lessee of or holds or operates any personal property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
1,000,000 or (viiB) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties for the performance purchase or sale of raw materials, commodities, supplies, products, equipment or other personal property or services under which involves consideration in the aggregate undelivered balance since the Most Recent Audited Balance Sheet Date of such products and services has a selling price in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business1,000,000;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software contract or group of related software licenses contracts with the same party or group of no affiliated parties continuing over a period of more than six months from the date or dates thereof, not terminable by the Company upon 30 days' or less notice without penalty or involving more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer1,000,000;
(x) contract concerning the provision of co-location and related services relating to the Companymarketing, which services are used to fulfill obligations to provide software and data hosting services to customersadvertising or promotion of its products involving more than $1,000,000;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including including, without limitation, demand or and piggyback registration rights);
(xii) agreements relating to the ownership of, investments in or loans and advances to any Person, including investments in joint ventures and minority equity investments;
(xiii) license, royalty, indemnification or other agreement with respect to any intangible property (including any Intellectual Property), including any agreements that prohibit or limit the ability of the Company to use or disclose any Intellectual Property or to engage in any line of business, or to compete with any Person or to carry on its business or any other business anywhere in the world other than in the ordinary course of business;
(xiv) salesbroker, distributionagent, manufacturingsales representative, supply sales or franchise agreementdistribution agreement other than in the ordinary course of business;
(xv) power of attorney or other similar agreement with a term or grant of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annuallyagency;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world, including any nondisclosure or confidentiality agreements; or
(xixxvii) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 1,000,000 annually. To , other than in the extent applicable, the Material Contracts identified on Schedule 5.11 ordinary course of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsbusiness.
(b) All The Company has delivered or made available to Vista a correct and complete copy (as amended to date) of the contractseach contract, leasesagreement, agreements and instruments set forth or required to be instrument set forth on Schedule 5.11(b4.15 (collectively, the "Material Contracts"). With respect to each Material Contract: (i) of the Disclosure Schedule are validsuch Material Contract is legal, binding valid and binding, enforceable against the Company, and to the Company’s knowledge, against the other party thereto, Company in accordance with their respective termsthe terms (except to the extent required by Creditors Rights Laws), and shall in full force and effect; (ii) such Material Contract will continue to be legal, valid and binding, enforceable against the Company in accordance with the terms (except to the extent required by Creditors Rights Laws), and in full force and effect without penalty in accordance with their on identical terms upon following the consummation of the transactions contemplated hereby, subject ; (iii) to (i) laws the Company's knowledge no party to such Material Contract is in breach or default of general application relating to bankruptcy, insolvency and the relief of debtorsterms thereof, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of to the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) Company's knowledge no event has occurred which with the passage notice or lapse of time would constitute a breach or the giving of notice or both would result in a default, breach or event of noncompliance by the Company permit termination, modification, or acceleration, under any such Material Contracts or instrument to which the Company is a partyContract; (iii) the Company has no present expectation or intention of not fully performing all such obligations; and (iv) no partially-filled or unfilled customer purchase order or sales order is subject party to cancellation or such Material Contract has repudiated any other modification by provision thereof.
(c) Except as specifically set forth in Schedule 4.15(c), the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts contract, agreement, instrument or understanding that contains a "change in control," "potential change in control," or similar provision, in each case, that would be triggered by the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companytransactions contemplated hereunder.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Aspect Communications Corp)
Contracts and Commitments. (a) Except as expressly specifically contemplated by this Agreement or and except as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)"Contracts Schedule" attached hereto, the Company is not a ------------------ party to any or bound by, whether written or oral, any:
(i) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, retirement or any other employee benefit form of deferred compensation plan or arrangementany stock purchase, stock option, hospitalization insurance or any collective bargaining agreement similar plan or any other contract with any labor unionpractice, whether formal or severance agreements, programs, policies or arrangementsinformal;
(ii) any contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeany severance agreements;
(iii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any of its assets;
(iv) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or amounts in the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Companyaggregate exceeding $10,000;
(v) Guarantyagreement under which the Company has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(vi) agreements with respect to the lending or investing of funds;
(vii) license or royalty agreements;
(viii) guaranty of any obligation, other than endorsements made for collection;
(ix) lease or agreement under which the Company it is lessee of of, or holds or operates operates, any property, real or personal, personal property owned by any other party, except party calling for any lease payments in excess of real or personal property under which the aggregate annual rental payments do not exceed $150,00010,000 annually;
(viix) lease or agreement under which the Company it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Companyit;
(viiixi) contract or group of related contracts with the same party continuing over a period of more than six months from the date or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000dates thereof, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification not terminable by it on 30 days or agreement with respect to any intangible property (including any Intellectual Property Rights) granted less notice without penalties or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no involving more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software10,000;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under contract which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting prohibits it from freely engaging in any business or competing anywhere in the world; or
(xixxiii) any other agreement which is material to its operations and business prospects it whether or involves a consideration not entered into in excess the Ordinary Course of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsBusiness.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth disclosed on Schedule 5.11(b) of the Disclosure Contracts Schedule, (i) no contract or ------------------ commitment required to be disclosed on the Contracts Schedule has been breached ------------------ or canceled by the other party and neither the Company nor any Seller has knowledge of any anticipated breach by any other party to any contract set forth on the Contracts Schedule, (ii) no customer or supplier has indicated in writing ------------------ or orally to the Company, or any Seller that it shall stop or decrease the rate of business done with the Company or that it desires to renegotiate its contract or current arrangement with the Company, (iii) the Company has performed, in performed all material respects, all the obligations required to be performed by it in connection with the contracts or commitments required to be disclosed on the Contracts Schedule and is not in ------------------ default under or in breach of norany contract or commitment required to be disclosed on the Contracts Schedule, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) and no event has occurred which with the ------------------ passage of time or the giving of notice or both would result in a defaultdefault or breach thereunder, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iiiiv) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject obligation pursuant to any penaltycontract set forth on the Contracts Schedule, right of set-off or other charge by the other party thereto for late performance or delivery; and (vvi) each agreement is legal, valid, binding, ------------------ enforceable and in full force and effect and will continue as such following the consummation of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companytransactions contemplated hereby.
(c) Buyer’s counsel has been supplied The Sellers have provided the Purchaser with a true and correct copy of each of the Material Contracts all written contracts which are referred required to be disclosed on Schedule 5.11 of the Disclosure Contracts Schedule, in each case together with all amendments, waivers or other ------------------ changes theretothereto (all of which are disclosed on the Contracts Schedule). The ------------------ Contracts Schedule contains an accurate and complete description of all material ------------------ terms of all oral contracts referred to therein.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company is not a party to any written or oral:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b4.12 of the Disclosure Schedule:
(a) The Companies do not have any Contracts which either individually or in conjunction with other Contracts with the same party, and in connection with the same matter, relate to commitments in excess of $25,000 per annum or are otherwise material to their business, operations or prospects;
(b) To the Knowledge of the Companies, no Contract or bid is anticipated to result in any loss to any Company upon completion or performance thereof, and no Contract or bid is at prices materially above or below the usual prices of the Companies for the same or similar products or services;
(c) The Companies do not have any outstanding Contracts or arrangements (i) providing for the payment of any salary, bonus or commission based on sales or earnings, (ii) with an employee consultant or other service provider of any Company, including contracts providing for employment, consulting, deferred compensation or benefit plans or agreements to an employee, that has aggregate annual payments in excess of $100,000 and is not terminable on sixty (60) days notice or less or (iii) with any Related Person;
(d) The Companies do not have any Contracts with an independent contractor or consultant that has aggregate annual payments in excess of $100,000 and is not terminable on sixty (60) days notice or less without penalty, liability or premium of any type, including, without limitation, severance or termination pay;
(e) The Companies do not have any Contracts relating to Company Rights (other than Company License Rights for off-the-shelf software);
(f) The Companies do not have any Contracts pursuant to which they have guaranteed any obligations of other persons or made any agreements to acquire or guarantee any obligations of or indemnify or hold harmless other Persons other than in connection with the acquisition of the Companies by the ESOP Trust, Contracts not on the Operating Companies’ standard forms or Permanent Placement Agreements with clients, the Guaranty of Jamestown in favor of Medical Protective, and such other Indebtedness as listed on Schedule 4.12(k) of the Disclosure Schedule;
(g) The Companies do not have any Contract which provides for contingent payments or earn-outs other than this Agreement and the Performance Share Plans of the Companies and Employment Agreements with ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
(h) The Companies do not have any (i) employee non-competition agreements, or (ii) agreements or policies that contain any severance or termination pay liabilities or obligations other than Employment Agreements with ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the Performance Share Plans;
(i) The Companies do not have any collective bargaining or union Contracts;
(j) The Companies are not restricted by any Contract from carrying on their businesses as currently conducted anywhere in the world;
(k) The Companies do not have any obligations for Indebtedness other than as set forth on Schedule 4.12(k) of the Disclosure Schedule;
(l) The Companies do not have any outstanding loans to any Person (other than travel and entertainment advances to Employees in the Ordinary Course of Business);
(m) The Operating Companies and Jamestown do not have a power of attorney outstanding or any obligations or liabilities as guarantor, surety, co-▇▇▇▇▇▇, endorser, co-maker, indemnitor or otherwise in respect of the obligation of any other Person, except as disclosed in Sections 4.8(c) and 4.12(f);
(n) None of the Companies are a party to any partnership or joint venture agreement whether or not a separate legal entity is created thereby;
(o) None of the Companies are a party to any Contract (i) relating to the lease or similar arrangement of any machinery, equipment, motor vehicles, furniture, fixture or similar property except as identified on Schedule 4.12(a) of the Disclosure Schedule, (iii) to which any federal, state or local Governmental Entity or authority is a party, (iii) pursuant to which any Company is or may be obligated to make payments, contingent or otherwise, on account of or arising out of prior acquisitions or sales of businesses, assets or stock of other Persons, (iv) relating to the sale or other disposition of any of its assets, Property or other rights except pursuant to the Performance Share Plans of the Companies, or (v) that would obligate any Company has performedto repair, replace, accept the return of or make any refund in all material respects, all obligations required to be respect of any product or service sold or performed by it and is not in default under or any Company other than pursuant to any Permanent Placement Contract;
(p) None of Companies are in breach of noror default, as and to the Knowledge of the date hereofOperating Companies, in receipt of there is no basis for any valid claim of default or breach or default, under any Material material Contract or instrument to which the any Company is a party; (ii) party or by which any Company or any of it respective assets are bound and, to the Knowledge of the Companies, there exists no event has occurred or condition which (whether with or without notice, lapse of time, or both) would constitute a default thereunder, give rise to a right to accelerate, modify or terminate any provision thereof or give rise to any Encumbrance on its Property or a right to any additional or guaranteed payments; and to the passage Knowledge of time or the giving of notice or both would result Companies, no other party to any such Contract is in a default, breach or event default thereof other than for delinquent or past due amounts for which adequate reserves have been established in the Financial Statements in accordance with GAAP;
(q) None of noncompliance by the Company under any Material Contracts or instrument Companies’ agreements to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is provide goods and services are subject to any penalty, right of set-off agreement that restricts the respective Company’s ability to change the price charged for such goods or services other charge by the other party thereto for late performance or deliverythan restrictions under Federal Supply Schedule Contracts regarding “economic price adjustments”; and
(r) Each contract and (v) as agreement referred to in Schedule 4.12 of the date hereof Disclosure Schedule is valid and in full force and effect and constitutes a legal, valid and binding obligation of the applicable Company has no knowledge and, to the Knowledge of any breach or anticipated breach by the Companies, the other parties thereto, enforceable in accordance with its terms, and will not cease to be valid and in full force and effect after the Closing Date, except to the extent any Material Contracts, lease, agreement, instrument or commitment such Contract requires Consent that will not be procured pursuant to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a true Section 2.5 hereof; accurate and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedulecomplete copies thereof, together with all amendmentsamendments thereto, waivers have been heretofore delivered or other changes theretomade available to Buyer of all Contracts not on the Operating Companies’ standard forms.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly specifically contemplated by this Agreement or and except as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)"Contracts Schedule" attached hereto, neither the Company nor any of its Subsidiaries is not currently a party to any or bound by, whether written or oral, any:
(i) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, retirement or any other employee benefit form of deferred compensation plan or arrangementany stock purchase, stock option, hospitalization insurance or any collective bargaining agreement similar plan or any other contract with any labor unionpractice, whether formal or severance agreements, programs, policies or arrangementsinformal;
(ii) any contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officersany severance agreements providing annual compensation in excess of $50,000, directors in each case that is not terminable or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated amendable by the Company upon less than thirty (30) days’ noticeat will;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any asset of its assets;
(iv) agreements with respect to the lending or group investing of assets of the Companyfunds;
(v) Guarantylicense or royalty agreements;
(vi) lease or agreement under which the Company is lessee guaranty of or holds or operates any propertyobligation, real or personal, owned by any other party, except than endorsements made for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000collection;
(vii) lease or agreement under which the Company it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it (other than leases of equipment in the CompanyOrdinary Course of Business);
(viii) contract or group of related contracts with the same party continuing over a period of more than six months from the date or group of affiliated parties the performance of which involves consideration in the aggregate in excess of dates thereof, not terminable by it on 30 days or less notice without penalties or involving more than $150,000, other than purchase and sales orders incurred in the ordinary course of business50,000;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting prohibits it from freely engaging in any business or competing anywhere in the world; or
(xixx) any other agreement which not of the type listed above that is material to its operations and business prospects it whether or involves a consideration not entered into in excess the Ordinary Course of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsBusiness.
(b) All Except as disclosed on the Contracts Schedule, (i) no contract or commitment required to be disclosed on the Contracts Schedule has been breached or cancelled by the other party and the Company, its Subsidiaries and the Sellers have no Knowledge of the contracts, leases, agreements and instruments set forth or any anticipated breach by any other party to any contract required to be set forth on Schedule 5.11(bthe Contracts Schedule, (ii) except where not material to the business of the Disclosure Schedule are valid, binding and enforceable against the Company, and no customer or supplier has indicated in writing or orally to the Company’s knowledge, against any of its Subsidiaries or any Seller that it shall stop or decrease the other party thereto, in accordance rate of business done with their respective terms, and shall be in full force and effect without penalty in accordance the Company or any of its Subsidiaries or that it desires to renegotiate its contract or current arrangement with their terms upon consummation the Company of the transactions contemplated hereby, subject to (i) laws any of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Scheduleits Subsidiaries, (iiii) the Company has performed, in all material respects, all obligations required to be performed by it and each of its Subsidiaries is not in default under or in breach of norany contract or commitment required to be disclosed on the Contracts Schedule, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) and no event has occurred which with the passage of time or the giving of notice or both would result in a defaultdefault or breach thereunder, breach or event of noncompliance by (iv) neither the Company under nor any Material Contracts or instrument to which the Company is a party; (iii) the Company of its Subsidiaries has no any present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject obligation pursuant to any penaltycontract required to be set forth on the Contracts Schedule, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as each agreement required to be set forth on the Contracts Schedule is a valid and binding obligation of the date hereof Company and, to the Company has no knowledge Knowledge of any breach or anticipated breach by the Sellers, the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companythereto.
(c) Buyer’s counsel has been supplied The Sellers have provided the Purchaser with a true and correct copy of each of the Material Contracts all written contracts which are referred required to be disclosed on Schedule 5.11 of the Disclosure Contracts Schedule, in each case together with all amendments, waivers or other changes theretothereto (all of which are disclosed on the Contracts Schedule). The Contracts Schedule contains an accurate and complete description of all material terms of all oral contracts required to be set forth thereon.
Appears in 1 contract
Sources: Stock Purchase Agreement (National Equipment Services Inc)
Contracts and Commitments. (a) Except as expressly specifically contemplated by this Agreement or and except as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written "Contracts Schedule" or oral contracts or agreements required to be set forth on such any other schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)attached hereto, the Company is not a party to any or bound by, whether written or oral, any:
(i) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, retirement or any other employee benefit form of deferred compensation plan or arrangementany stock purchase, stock option, hospitalization insurance or any collective bargaining agreement similar plan or any other contract with any labor unionpractice, whether formal or severance agreements, programs, policies or arrangementsinformal;
(ii) any contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officersany severance agreements (in each case, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide except for “at-will” employment and maybe be terminated those which are terminable by the Company upon less than thirty (30) days’ noticeat will without liability therefor);
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any asset of its assets;
(iv) agreements with respect to the lending or group investing of assets of the Companyfunds;
(v) Guarantylicense or royalty agreements;
(vi) lease or agreement under which the Company is lessee guaranty of or holds or operates any propertyobligation, real or personal, owned by any other party, except than endorsements made for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000collection;
(vii) lease or agreement under which the Company it is lessor lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company$10,000 annually;
(viii) contract or group of related contracts with the same party continuing over a period of more than six months from the date or group of affiliated parties the performance of which involves consideration in the aggregate in excess of dates thereof, not terminable by it on 30 days or less notice without penalties or involving more than $150,000, other than purchase and sales orders incurred in the ordinary course of business10,000;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting prohibits it from freely engaging in any business or competing anywhere in the world; or
(xixx) any other agreement which is material to its operations and business prospects or involves a consideration it not entered into in excess the Ordinary Course of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsBusiness .
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth disclosed on the Contracts Schedule 5.11(b) of the Disclosure Scheduleor any other schedule attached hereto, (i) no contract or commitment required to be disclosed on the Contracts Schedule has been breached or canceled by the other party and the Company has performedno Knowledge of any anticipated breach by any other party to any contract set forth on the Contracts Schedule, (ii) no customer has indicated in writing or orally to the Company or any Seller that it shall stop or materially decrease the business done with the Company or that it desires to renegotiate its contract or current arrangement with the Company, (iii) the Company has performed all the material respects, all obligations required to be performed by it in connection with the contracts or commitments required to be disclosed on the Contracts Schedule and is not in default under or in breach of norany contract or commitment required to be disclosed on the Contracts Schedule, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; and (iv) no partially-filled or unfilled customer purchase order or sales order each agreement is subject to cancellation or any other modification by legal, valid, binding, enforceable and in full force and effect and will continue as such following the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as consummation of the date hereof transactions contemplated hereby. For purposes of this Section 5.11(b), "Knowledge" shall be deemed to include the Company has no actual knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes theretoNoncompete Parties.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly specifically contemplated by this Agreement or and except as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)"Contracts Schedule" attached hereto, neither the Company ------------------ nor any of its Subsidiaries is not a party to any or bound by, whether written or oral, any:
(i) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, retirement or any other employee benefit form of deferred compensation plan or arrangementany stock purchase, stock option, group health insurance or any collective bargaining agreement similar plan or any other contract with any labor unionpractice, whether formal or severance agreements, programs, policies or arrangementsinformal;
(ii) any contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeany severance agreements;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any asset of its assets;
(iv) agreements with respect to the lending or group investing of assets of the Companyfunds;
(v) Guarantylicense or royalty agreements (other than license agreements for mass marketed shrink wrap software);
(vi) lease or agreement under which the Company is lessee guaranty of or holds or operates any propertyobligation, real or personal, owned by any other party, except than endorsements made for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000collection;
(vii) lease or agreement under which it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $100,000 annually (other than leases of equipment in the Company Ordinary Course of Business);
(viii) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it (other than leases of equipment in the CompanyOrdinary Course of Business);
(viiiix) contract or group of related contracts with the same party continuing over a period of more than six months from the date or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000dates thereof, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no involving more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer50,000;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting prohibits it from freely engaging in any business or competing anywhere in the world; or
(xixxi) any other agreement which is material to its operations and business prospects it whether or involves a consideration not entered into in excess the Ordinary Course of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsBusiness.
(b) All Except as disclosed on the Contracts Schedule, (i) no contract ------------------ or commitment required to be disclosed on the Contracts Schedule has been ------------------ breached or cancelled by the other party and the Company, its Subsidiaries and the Sellers have no knowledge of the contracts, leases, agreements and instruments set forth or any anticipated breach by any other party to any contract required to be set forth on Schedule 5.11(bthe Contracts Schedule, (ii) of the Disclosure Schedule are valid, binding and enforceable against no ------------------ customer or supplier has indicated in writing or orally to the Company, and any of its Subsidiaries or any Seller that it shall stop or decrease the rate of business done with the Company or any of its Subsidiaries or that it desires to renegotiate its contract or current arrangement with the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation Company of the transactions contemplated hereby, subject to (i) laws any of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Scheduleits Subsidiaries, (iiii) the Company and each of its Subsidiaries has performed, in performed all material respects, all the obligations required to be performed by it in connection with the contracts or commitments required to be disclosed on the Contracts Schedule and is not in ------------------ default under or in breach of norany contract or commitment required to be disclosed on the Contracts Schedule, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) and no event has occurred which with the ------------------ passage of time or the giving of notice or both would result in a defaultdefault or breach thereunder, breach or event of noncompliance by (iv) neither the Company under nor any Material Contracts or instrument to which the Company is a party; (iii) the Company of its Subsidiaries has no any present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject obligation pursuant to any penaltycontract required to be set forth on the Contracts Schedule, right of set-off or other charge by the other party thereto for late performance or delivery; and (vvi) ------------------ each agreement required to be set forth on the Contracts Schedule is legal, ------------------ valid, binding, enforceable and in full force and effect and will continue as such following the consummation of the date hereof transactions contemplated hereby, except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, moratorium, reorganization or similar laws affecting creditors' rights generally and the Company has no knowledge discretionary nature of any breach or anticipated breach by the specific performance and other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companyequitable remedies.
(c) Buyer’s counsel has been supplied The Sellers have provided the Purchaser with a true and correct copy of each of the Material Contracts all written contracts which are referred required to be disclosed on Schedule 5.11 of the Disclosure Contracts Schedule, in each case together ------------------ with all amendments, waivers or other changes theretothereto (all of which are disclosed on the Contracts Schedule). The Contracts Schedule contains an ------------------ ------------------ accurate and complete description of all material terms of all oral contracts required to be set forth thereon.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)Schedule, the Company is not Companies are not, individually or collectively, a party to to, or bound or affected by any contract, lease, agreement, covenant, license, instrument or commitment (whether written or oral) of any type, including the following:
(ia) contracts for the employment or compensation of any officer or individual employee, not terminable without further liability at any time:
(b) contracts with any labor union;
(c) continuing contracts for the future purchase of materials, supplies or equipment, at a cost of $1,000 or more, or to be delivered more than thirty (30) days after the date hereof;
(d) continuing contracts for the future provision of their services;
(e) distribution or agency contracts, franchise contracts, or advertising commit ments, which cannot be terminated without further liability to the Companies upon no more than thirty (30) days' notice;
(f) pension, profit sharing, deferred compensation, retirement or stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee or stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether plans in cash or otherwise)effect with respect to officers, to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsothers;
(iig) contract leases under which they are lessor or lessee;
(h) underwriting agreements or agreements with a broker or finder;
(i) consulting agreements;
(j) contracts for the employment acquisition of a business, or engagement substantially all of the property, assets, or stock of a business under which there are any continuing or unperformed obligations on the part of any officerof the parties thereto; or
(k) Any other contract, individual employee agreement, or other Person on a full-time, part-time, consulting, contractor commitment involving $1,000 or other basis more or relating which is not terminable without further liability to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company Companies upon less no more than thirty (30) days’ ' notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating . There have been delivered to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group Buyer true and correct copies of assets each of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration Contracts listed in the aggregate in excess of $150,000Disclosure Schedule. All Contracts, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty and are enforceable in accordance with their terms upon consummation of the transactions contemplated hereby, subject against all other parties to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remediessuch Contracts. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, The Companies have performed all obligations required to be performed by it them to date and is are not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach material respect under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are partiesa party. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any None of the Material Contracts on the part of the Companywere arrived at, or otherwise reflect, less than arms length negotiations or bargaining.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(aSection 4.11(a) of the Disclosure Schedule (Schedules lists all written or oral contracts or agreements required of the following Contracts to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), which the Company or any Subsidiary thereof is not a party to any written or oraland which are in effect as of the date of this Agreement:
(i) pensionContracts that provide for the purchase of goods or services, profit sharingincluding license agreements, stock option (other than sales representative agreements, reseller agreements and independent software vendor agreements, by the Company Options granted under or any Subsidiary thereof from any Person that contemplate the expenditure by the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsSubsidiary thereof in excess of One Hundred Thousand and 00/100 Dollars ($100,000.00);
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer Contracts that provide for “at-will” employment and maybe be terminated the for the sale by the Company upon less than thirty or any Subsidiary thereof of materials, supplies, goods, services, equipment or other assets that provides for either aggregate annual payments to the Company or any Subsidiary thereof in excess of One Hundred Thousand and 00/100 Dollars (30) days’ notice$100,000.00);
(iii) contract under which Contracts relating to the borrowing of money by the Company has advanced or loaned any other Person amountsSubsidiary thereof, to the granting by the Company or any Subsidiary thereof of a Lien on any of its material assets, or any guaranty by the Company or any Subsidiary thereof of any Liability or obligation in respect of borrowed money or otherwise;
(iv) agreement Contracts containing any Liability or indenture relating obligation to borrowed money provide support or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on maintenance for Company Products for any asset or group period in excess of assets of the Companytwelve (12) months;
(v) GuarantyContracts continuing over a period of more than one year from the date thereof that are not terminable by each of the Company and its Subsidiary that are a party thereto upon thirty (30) or fewer days' notice without penalty;
(vi) lease or agreement under which Contracts that limit the freedom of the Company is lessee or any Subsidiary thereof to compete in any line of business or holds with any Person or operates in any propertyarea or which would so limit the Company or any Subsidiary thereof after the Closing Date, real including any agreement containing covenants or personalother Liabilities or obligations granting or containing any current or future commitments regarding exclusive rights, owned by any other partynon-competition or “most favored nations” restriction on the operation or scope of its businesses or operations, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000similar terms;
(vii) lease agreements with any employee, officer or agreement under which consultant that require the Company is lessor or any Subsidiary thereof to pay compensation to such employee, officer or consultant in excess of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company$100,000;
(viii) contract powers of attorney executed on behalf of the Company or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of businessany Subsidiary thereof;
(ix) assignmentany partnership, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty joint venture or other consideration for any such software similar agreement or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyerarrangement;
(x) contract concerning the provision of co-location and related services any agreement relating to the Companyacquisition or disposition of any business (whether by merger, which services are used to fulfill obligations to provide software and data hosting services to customerssale of stock, sale of assets or otherwise);
(xi) contract pursuant to which (i) Company Intellectual Property Rights any agreement requiring the escrow of any source code or other software or technology owned by a third party are actually embedded in the Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Softwareany Subsidiary thereof;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyerany Material In-Bound IP Agreement and any Material Out-Bound IP Agreement;
(xiii) any agreement under which it has granted any Person any registration rights (including demand providing for indemnification, guaranty or piggyback registration rights);guaranteed results; and
(xiv) salesany agreement that if, distributionterminated, manufacturing, supply or franchise agreement;
(xv) agreement with would reasonably be expected to have a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsAdverse Effect.
(b) All of the contracts, leases, agreements and instruments Except as set forth or required to be set forth on Schedule 5.11(bin Section 4.11(b) of the Disclosure Schedule are validSchedules, binding and enforceable against (i) neither the CompanyCompany nor any Subsidiary thereof has materially breached any Contract set forth in Section 4.11(a) of the Disclosure Schedules, and to the Company’s knowledge's Knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as no Contract set forth on Schedule 5.11(bin Section 4.11(a) of the Disclosure ScheduleSchedules has been materially breached in any respect or cancelled by the other party and has not been duly cured or reinstated, (iii) neither the Company has performed, in all material respects, all obligations required to be performed by it and nor any Subsidiary thereof is not in default under or in breach of nor, as of the date hereof, in receipt of any written claim of default or breach under any Material Contract such Contract, agreement or instrument arrangement and (iii) to which the Company is a party; (ii) Company's Knowledge, no event has occurred which that with the passage of time or the giving of notice or both would result in a default, material breach or event default under any such Contract, agreement, matter or arrangement. To the Company's Knowledge, each Contract and commitment listed in Section 4.11(a) of noncompliance by the Disclosure Schedules is valid, binding, in full force and effect, and enforceable against the Company under any Material Contracts or instrument and each Subsidiary thereof that is party thereto and, to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by Company's Knowledge, against the other party thereto (except as the enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other Laws relating to or limiting creditors' rights generally or by general principles of equity, regardless of whether such enforceability is subject considered in a proceeding at law or in equity) and will continue to be legal, valid, binding, in full force and effect, and enforceable following the consummation of the transactions contemplated by this Agreement without obtaining any consent, including with respect to any penaltydeemed assignment or transfer, right and without the payment of set-off any penalties, special assessments, or other charge by the other party thereto for late performance or delivery; and (v) amounts as a result of the date hereof Company entering into this Agreement or the consummation of the transactions contemplated hereby. With respect to each Contract and commitment listed in Section 4.11(a) of the Disclosure Schedules, the Company has no knowledge made available to Parent a correct and complete copy in all material respects of any breach or anticipated breach by the other parties each written Contract and commitment (as amended to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companydate).
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 Except as set for in Section 4.11(c) of the Disclosure ScheduleSchedules, together with all amendments, waivers no third party consents shall be required to assign or other changes theretotransfer the agreements listed in Section 4.11(a) of the Disclosure Schedules from the Company or any Subsidiary thereof to the Surviving Corporation (the consent that is specifically designated in Section 4.11(c) of the Disclosure Schedules as “Designated Third Party Consent” is referred to as the “Designated Third Party Consent”).
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) Section 3.13 of the Disclosure Schedule sets forth a list of all of the following Contracts (all written other than Plans, except to the extent contemplated by Sections 3.13(a) or oral contracts (b)) to which the Company is a party or agreements required to be set forth on such schedule being referred to herein as by which the “Material Contracts” and each Company or its respective assets are bound (each, a “Material Contract”)):
(a) employment agreements or severance agreements or employee termination arrangements, in any such case, with respect to the senior executive officers of the Company is not and employees earning a party to any written or oral:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether base salary in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsexcess of $200,000 per year;
(iib) contract for the employment or engagement any change of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets control agreements with employees of the Company;
(vc) GuarantyContracts containing any covenant limiting the ability of the Company to engage in any line of business or to compete with any business or Person;
(vid) lease Contracts with Seller or agreement any owner, partner, member, officer, director or employee of Seller (other than any employment, severance and change of control agreements covered by clause (a) or (b) above);
(e) Contracts under which the Company is lessee has borrowed or loaned money, or any note, bond, indenture, mortgage, installment obligation or other evidence of indebtedness for borrowed or holds loaned money or operates any propertyguarantee of such indebtedness, real or personalin each case, owned by any other party, except for any lease relating to amounts in excess of real or personal property under which the aggregate annual rental payments do not exceed $150,000250,000;
(viif) lease leases pursuant to which material real property is leased to or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by from the Company;
(viiig) contract guaranties, suretyships or group other contingent agreements of related contracts the Company involving underlying obligations of not less than $250,000;
(h) any Contract relating to capital expenditures with respect to the same party Company and involving future payments which exceed $250,000 in any 12-month period;
(i) any Contract relating to the acquisition or group disposition of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, material assets (other than purchase and sales orders incurred in the ordinary course of business;business consistent with past practice) or any capital stock of any business enterprise; and
(ixj) assignment, license, indemnification or agreement with respect Contracts (other than those covered by clauses (a) through (i) above) pursuant to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by which the Company is entitled to third partiesreceive or has an obligation to pay in excess of $1,000,000 over any twelve- month period. The Company has made available to Buyer true, except licenses granted by a third party to complete, and correct copies of all Material Contracts. Each of the Material Contracts is valid and binding upon the Company of commercially availableand, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the CompanyKnowledge, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in all material respects and enforceable by the Company in accordance with their terms upon consummation of the transactions contemplated herebyits respective terms, subject to (i) bankruptcy, insolvency, reorganization and other laws of general application applicability relating to bankruptcy, insolvency or affecting creditors’ rights and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remediesto general equity principles. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as As of the date hereof, with respect to all Material Contracts, neither the Company nor, to the Company’s Knowledge, any other party to any such contract is in receipt of any claim of breach thereof or default or breach thereunder and, to the Company’s Knowledge, there does not exist under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which which, with the passage of time or the giving of notice or both the lapse of time, would constitute such a breach or default, except for such breaches, defaults and events as to which requisite waivers or consents have been obtained or which would not, individually or in the aggregate, result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) SCHEDULE 3.11 lists each of the Disclosure Schedule following Contracts (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as x) by which any of the “Material Contracts” and each a “Material Contract”)Purchased Assets, the Company Inventory or the Facilities are bound or affected, or (y) to which Seller is not a party to any written or oralby which it is bound in connection with the GAP Business, the Purchased Assets or the Inventory:
(i) pensionall Contracts involving aggregate consideration in excess of US$50,000 or requiring performance by any party more than one year from the Execution Date, profit sharingwhich, stock option (other in each case, cannot be cancelled without penalty or without more than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) 180 days’ notice;
(iiiii) contract under which all Contracts that relate to the Company has advanced or loaned sale of any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness of the Purchased Assets or the mortgaging, pledging or otherwise placing a LienInventory, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business, for consideration in excess of US$50,000;
(iii) all Contracts that relate to the acquisition of any business, a material amount of stock or assets of any other Person or any real property (whether by merger, sale of stock, sale of assets or otherwise), in each case involving amounts in excess of US$50,000;
(iv) except for agreements relating to trade receivables, all Contracts relating to Indebtedness (including, without limitation, guarantees), in each case having an outstanding principal amount in excess of US$50,000;
(v) any Contract or other document that limits the freedom of Seller or any Affiliate of Seller to compete in any line of business similar to the GAP Business or to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any asset;
(vi) any partnership, joint venture or other similar Contract;
(vii) any agency, dealer, sales representative or other similar agreement;
(viii) all Contracts between or among Seller on the one hand and any Affiliate of Seller on the other hand; and
(ix) assignmentall collective bargaining agreements or Contracts with any labor organization, license, indemnification union or agreement association with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsBusiness Employees.
(b) All With respect to Seller’s obligations thereunder, all of the contracts, leases, agreements and instruments set forth or required to be Contracts set forth on Schedule 5.11(b) SCHEDULE 3.11 are valid and binding obligations of the Disclosure Schedule are validSeller, binding enforceable in accordance with their respective terms (subject to bankruptcy, insolvency, reorganization and enforceable against the Company, other laws of general applicability relating to or affecting creditors’ rights and to the Companygeneral principles of equity). Except as specifically set forth on SCHEDULE 3.11, (i) to Seller’s knowledge, against no Contract or commitment disclosed on SCHEDULE 3.11 has been breached in any material respect by the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of or cancelled by the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtorsother party thereto, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company Seller has performed, in performed all material respects, all obligations under the contracts listed on SCHEDULE 3.11 required to be performed by it and is not in default under or in breach of nor, Seller as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) Execution Date and no event has occurred which which, with the passage notice or lapse of time or the giving of notice or both both, would result in constitute such a default, material breach or event of noncompliance default by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the CompanySeller.
(c) Buyer’s counsel Seller has been supplied with made available to Buyer a true and correct copy of each of the Material all written Contracts which are referred to on Schedule 5.11 of the Disclosure ScheduleSCHEDULE 3.11, together with all amendments, exhibits, attachments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. Except as disclosed on Schedule 3.22 of the Disclosure Schedule: (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the The Company is not nor is any Subsidiary, with respect to its business, a party to any oral or written or oral:
contract: (i) pension, profit sharing, stock option (other than that prohibits the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan of its Subsidiaries from freely engaging or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
competing in its line of business anywhere in the world; (ii) contract for the employment or engagement of any officer, individual employee or other Person that is not on a fullarms-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
length terms; (iii) contract under pursuant to which the Company or any of its Subsidiaries has advanced incurred or loaned any other Person amounts;
accrued losses; (iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing that by its terms may be terminated upon a Lien, other than a Permitted Lien, on any asset or group of assets change in control of the Company;
Company or any of its Subsidiaries; (v) Guaranty;
(vi) lease or agreement under which that commits the Company is lessee or any of its Subsidiaries to purchase or holds sell any properties or operates any property, real or personal, owned by any other party, except assets outside of the ordinary course of business for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000100,000; (vi) that involves an unfulfilled obligation, other than purchase and sales orders incurred individually or in the ordinary course aggregate, in excess of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location 100,000 and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company or any of its Subsidiaries upon less than thirty 60 calendar days' notice for a cost of not less than $100,000; (30b) days’ notice without penalty and involves a consideration in excess Since December 31, 1997, none of $150,000 annually;the Company's or any of its Subsidiaries' significant customers, suppliers, outside service providers or sources of referral has indicated that it will stop or materially decrease the rate of business done with or referred to either the Company or any such Subsidiary. 26
(xvic) contract regarding voting, transfer or other arrangements related to To the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock Knowledge of the Company, except pursuant to neither the Company’s standard form Company nor any of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which its Subsidiaries is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject obligated to (i) laws of general application relating to bankruptcypurchase any property or services at a price greater than the prevailing market price, insolvency and the relief of debtors, and (ii) rules of law governing specific performancesell any property or services at a price less than the prevailing market price, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) pay rentals or royalties at a rate greater than the Company has no present expectation prevailing market price or intention of not fully performing all such obligations; (iv) no partially-filled act as lessor or unfilled customer purchase order or sales order is subject to cancellation or any other modification by licensor at a rate less than the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companyprevailing market price.
(cd) Buyer’s counsel Parent has been supplied with a true and correct copy of each of the Material Contracts all written contracts which are referred to on Schedule 5.11 of the Disclosure Schedule3.22, together with all amendments, exhibits, attachments, waivers or other changes thereto. SECTION 3.23 Real Estate Leases. Schedule 3.23 hereto sets forth a list of (a) all leases and subleases under which the Company and its Subsidiaries is lessor or lessee of any real property together with all amendments, supplements, nondisturbance agreements and other agreements pertaining thereto, (b) all options held by the Company and its Subsidiaries or contractual obligations on the part of the Company and its Subsidiaries to purchase or acquire any interest in real property and (c) all options granted by the Company and its Subsidiaries or contractual obligations on the part of the Company and its Subsidiaries to sell or dispose of any interest in real property. To the Company's knowledge, there is not any lien, claim, option, charge, security interest, limitation, encumbrance or restriction of any kind (any of the foregoing being a "Lien") on any of the leasehold interests set forth on Schedule 3.23 hereto except for (a) Liens reflected in the balance sheet included in the Company's SEC Documents, (b) Liens of record consisting of zoning or planning restrictions, easements, permits and other restrictions or limitations on the use of real property which do not materially detract from the value of, or a materially impair the use of, such property by the Company and its Subsidiaries in the operation of their respective businesses, (c) Liens for current taxes, assessments or governmental charges or levies on property not yet delinquent or being contested in good faith and for which appropriate reserves have been established in accordance with United States generally acceptable accounting principles (which contested levies are described on Schedule 3.23), and (d) Liens imposed by law, such as materialman's, mechanic's, carrier's, workers' and repairmen's Liens securing obligations not yet delinquent or being contested in good faith and for which appropriate reserves have been established in accordance with United States generally acceptable accounting principles or securing obligations not being paid in the ordinary course of business in accordance with customary and commercially reasonable practice (collectively, "Permitted Liens").
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)attached Contracts Schedule, the Company is not a party to any written or oral:
any: (i) purchase agreement to any completed material business acquisition by the Company within the last two years; (ii) collective bargaining agreement or contract with any labor union; (iii) written bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as described in Section 4.12 or the schedules relating thereto; (iv) stock purchase, stock option or similar plan; (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(iiv) material written contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other basis consulting basis; (vi) material sales representative or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty distributor agreement; (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(ivvii) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, lien on any asset or group of assets material portion of the Company;
’s assets other than Permitted Liens; (vviii) Guaranty;
guaranty of any obligation for borrowed money or other material guaranty; (viix) lease or agreement under which the Company it is lessee of of, or holds or operates any property, real or personal, personal property owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed exceeds $150,000;
250,000; (viix) lease or agreement under which the Company it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by for which the Company;
annual rental exceeds $250,000; (viiixi) contract or group of related contracts with the same party for the purchase of products or group services, under which the undelivered balance of affiliated parties the performance of which involves consideration in the aggregate such products and services has a selling price in excess of $150,000, 500,000 (other than purchase and sales orders incurred entered into in the ordinary course of business;
); (ixxii) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software contract or group of related software licenses of no more than $150,000contracts with the same party that provides annual revenues (based on the annual revenues for the calendar year ending December 31, except pursuant 2006) to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
500,000 (xviother than purchase orders entered into in the ordinary course of business); or (xiii) contract regarding voting, transfer or other arrangements related to which prohibits the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it Company from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel Buyer either has been supplied with with, or has been given access to, a true and correct copy of each of the Material Contracts all written contracts which are referred to on Schedule 5.11 of the Disclosure Contracts Schedule, together with all material amendments, waivers or other changes thereto.
(c) Except as set forth on the Contracts Schedule, (i) each contract listed on the Contracts Schedule is in full force and effect and is legal, valid and binding on the Company, and, to the Company’s knowledge, each other party thereto, enforceable against such parties in accordance with their terms, except to the extent that enforcement of the rights and remedies created thereby is subject to bankruptcy, insolvency, reorganization, moratorium, and other similar laws of general application affecting the rights and remedies of creditors and to general principles of equity; (ii) the Company is not in breach of any material provision of any contract listed on the Contracts Schedule; (ii) the Company has not repudiated or waived any provision of any contract listed on the Contracts Schedule; and (iv) to the Company’s knowledge, no other party to any contract listed on the Contracts Schedule is in breach in any respect, or has repudiated or waived any provision thereunder.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly specifically contemplated by this Agreement or and except as set forth and fully described on Schedule 5.11(aSCHEDULE 5.13(A) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)attached hereto, the Company Target is not a party to any or bound by, whether written or oral, any:
(i) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, retirement or any other employee benefit form of deferred compensation plan or arrangementany stock purchase, stock option, hospitalization insurance or any collective bargaining agreement similar plan or any other contract with any labor unionpractice, whether formal or severance agreements, programs, policies or arrangementsinformal;
(ii) any contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeany severance agreements;
(iii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien on any of its assets;
(iv) contract under which the Company Target has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or amounts in the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Companyaggregate exceeding $5,000;
(v) Guarantyagreement under which the Target has granted any Person any registration rights (including, without limitation, demand and piggyback registration rights);
(vi) agreements with respect to the lending or investing of funds;
(vii) any license or royalty agreements;
(viii) guaranty of any obligation, other than endorsements made for collection;
(ix) lease or agreement under which the Company it is lessee of of, or holds or operates operates, any property, real or personal, personal property owned by any other party, except party calling for any lease payments in excess of real or personal property under which the aggregate annual rental payments do not exceed $150,0005,000 annually;
(viix) lease or agreement under which the Company it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Companyit;
(viiixi) contract or group of related contracts with the same party continuing over a period of more than six months from the date or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000dates thereof, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification not terminable by it on 30 days or agreement with respect to any intangible property (including any Intellectual Property Rights) granted less notice without penalties or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no involving more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software10,000;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement contract which prohibits it from freely engaging in business anywhere in the form delivered to Buyerworld;
(xiii) other agreement under which material to it has granted any Person any registration rights (including demand whether or piggyback registration rights);not entered into in the Ordinary Course of Business; or
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsoral agreements and/or contracts.
(b) All of the contracts, leases, agreements and instruments set forth Except as disclosed on SCHEDULE 5.13(B):
(i) no contract or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against commitment has been breached or canceled by the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation neither the Target nor any Shareholder has Knowledge of the transactions contemplated hereby, subject any anticipated breach by any other party to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and any contract other equitable remedies. Except than as set forth on Schedule 5.11(bthe SCHEDULE 5.13(B);
(ii) other than as set forth on SCHEDULE 5.13(B), no customer or supplier has indicated in writing or orally to the Target or any Shareholder that it shall stop or decrease the rate of business done with the Disclosure Schedule, Target or that it desires to renegotiate its contract or current arrangement with the Target;
(iiii) the Company Target has performed, in performed all material respects, all the obligations required to be performed by it and in connection with all of the contracts or commitments that the Target has entered into is not in default under or in breach of norany contract or commitment, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) and no event has occurred which with the passage of time or the giving of notice or both would result in a default, default or breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; thereunder;
(iiiiv) the Company Target has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject obligation pursuant to any penalty, right of set-off or other charge by contract that the other party thereto for late performance or deliveryTarget entered into; and and
(v) other than as set forth on SCHEDULE 5.13(B), each agreement is legal, valid, binding, enforceable and in full force and effect and will continue as such following the consummation of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companytransactions contemplated hereby.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Merger Agreement (Miracom Corp)
Contracts and Commitments. To the best of MSS' and MSS Shareholder's ------------------------- knowledge, Exhibit 3.10 sets forth a list of each of the following written or ------------ oral contracts, agreements, commitments or other instruments to which MSS is a party or to which it or any of its assets or properties is bound which calls for or requires payments or the provision of goods or services by any party in excess of Ten Thousand Dollars ($10,000) per year (each a "Material Contract") (For purposes of this Section and Section 3.9, an agreement which provides for an initial payment or obligation less than Ten Thousand Dollars ($10,000), but which provides for possible future payments or obligations, shall be deemed to be in excess of $10,000 if MSS or the Shareholders reasonably expect that the agreement will involve amounts in excess of Ten Thousand Dollars ($10,000) over the term of the agreement.):
(a) Except as expressly consulting or similar agreement under which MSS provides any advice or services to a customer of MSS;
(b) continuing contract for the future purchase, sale, license, provision or manufacture of products, material, supplies, equipment or services which is not terminable on ninety (90) days' or less notice without cost or other liability to MSS or in which MSS has granted or received manufacturing rights, most favored customer pricing provisions or exclusive marketing rights relating to any product or services, group of products or services or territory;
(c) contract providing for the acquisition of software by MSS, for the development of software for MSS, or the license of software to MSS, which software is used or incorporated in any products currently distributed by MSS or services currently provided by MSS or is contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred used or incorporated in any products to herein as the “Material Contracts” and each a “Material Contract”), the Company is not a party be distributed or services to any written or oral:
(i) pension, profit sharing, stock option be provided by MSS (other than software generally available to the Company Options granted under the Company Stock Plan on standard forms delivered to Buyerpublic at a per copy license fee of less than One Thousand Dollars ($1,000), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(iid) joint venture or partnership contract or agreement or other agreement which has involved or is reasonably expected to involve a sharing of profits or losses in excess of Ten Thousand Dollars ($10,000) per annum with any other party;
(e) contract or commitment for the employment or engagement of any officer, individual employee or consultant of MSS or any other Person on a full-timetype of contract or understanding with any officer, part-time, consulting, contractor employee or consultant of MSS which is not immediately terminable by MSS without cost or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeliability;
(iiif) contract under which indenture, mortgage, trust deed, promissory note, loan agreement, guarantee or other agreement or commitment for the Company has advanced borrowing of money, for a line of credit or loaned any other Person amountsfor a leasing transaction of a type required to be capitalized in accordance with United States Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vig) lease or other agreement under which the Company MSS is lessee of or holds or operates any property, items of tangible personal property or real or personal, property owned by any other party, except for any lease of real or personal property third party and under which the aggregate annual rental payments do not to such third party exceed Ten Thousand Dollars ($150,00010,000) per annum;
(viih) lease agreement or agreement under which arrangement for the Company is lessor sale of any assets, properties, services or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000rights, other than purchase and sales orders incurred in the ordinary course of businessbusiness consistent with past practice;
(ixi) assignment, license, indemnification agreement which restricts MSS from engaging in any aspect of its business or agreement with respect to competing in any intangible property (including line of business in any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyergeographic area;
(xj) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
MSS IP Rights Agreements (xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded as defined in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rightsSection 3.12 below);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xvk) agreement with a term relating to the sale, issuance, grant, exercise, award, purchase, repurchase or redemption of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess any shares of $150,000 annually;
(xvi) contract regarding voting, transfer capital stock or other arrangements related to the Company’s Capital Stock securities of MSS or warrantsany options, options warrants or other rights to purchase or otherwise acquire any such shares of Capital Stock of the Companystock, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyerother securities or options, warrants or other rights therefor;
(xviil) contract with or agreement regarding commitment to any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the worldlabor union; or
(xixm) any other agreement which agreement, contract, commitment or instrument that is material to its operations and the business prospects of MSS or that involves a consideration commitment by MSS in excess of Ten Thousand Dollars ($150,000 annually10,000). To A copy of each Material Contract, or if such Material Contract is not in writing a written summary of the extent applicablematerial terms thereof, the which is required by this Section to be listed on Exhibit 3.10 has been delivered to NetSelect. (Where several Material Contracts identified on Schedule 5.11 that are not in writing contain material terms that do not differ in significant respects from each other, MSS may summarize once the material terms of the Disclosure Schedule are separately identified by type of agreement. The description of all such Material Contracts identified on Schedule 5.11 of and then simply identify the Disclosure Schedule clearly identify all amendments, waivers and other modifications various parties to such agreementsMaterial Contracts.
(b) All No consent or approval of the contracts, leases, agreements and instruments set forth or any third party is required to be set forth on Schedule 5.11(b) of ensure that, following the Disclosure Schedule are validClosing, binding and enforceable against the Company, and any Material Contract shall continue to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach violation thereof caused by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any virtue of the Material Contracts on the part of the CompanyMerger or by any other transaction called for by this Agreement.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Homestore Com Inc)
Contracts and Commitments. Section 5.14 of the Disclosure ------------------------- ------------ Schedule lists all of the following which relate to the Assets, the Business and/or the employees of each Seller, Holdings and Alltrista employed in connection with the Business (collectively, the "Contracts"): ---------
(a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)employment, the Company is not a party to any written or oral:
(i) consulting, bonus, profit-sharing, percentage compensation, deferred compensation, pension, profit sharingwelfare, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)retirement, employee stock purchase or other plan stock option plans or arrangement providing for deferred or other compensation (including agreements with any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees agents, affiliates or consultantslabor unions, excluding agreements terminable by Sellers on not more than 30 days' notice without liability 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 arrangementspenalty;
(iib) contract for the employment contracts, agreements, or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or commitments relating to loans to officersany joint venture, directors partnership, strategic alliance, or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticesharing of profits or losses with any person;
(iiic) contract under which the Company has advanced or loaned any other Person amountsleases for all Real Property;
(ivd) agreement contracts, agreements, or indenture relating commitments containing covenants purporting to borrowed money limit the freedom of either Seller or other Indebtedness any of their employees to compete in any business or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on in any asset or group of assets of the Companygeographic area;
(ve) Guarantycontracts, agreements, or commitments requiring payments or distributions to any employee of Sellers, Holdings or Alltrista or any relative or affiliate of any such person;
(vif) lease contracts, agreements, or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by commitments not disclosed on any other partySchedule to this Agreement that involve the payment or receipt by either Seller, except Holdings or Alltrista (whether in payment of a debt, as a result of a guarantee or indemnification, for any lease goods or services, or otherwise) of real more than Fifty Thousand Dollars ($50,000) per year or personal property under which One Hundred Thousand Dollars ($100,000) over the aggregate annual rental payments do not exceed $150,000;initial term thereof, or are otherwise material to the Business; and
(viig) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related material contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred not made in the ordinary course of business;
(ix) assignment. Each Seller, license, indemnification or agreement with respect Holdings and Alltrista have made true and correct copies of all of the Contracts available to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third partiesBuyer, except licenses granted by a third party for Contracts with Customers, which shall be provided to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use Buyer within five (5) days of the Company for an aggregate feeexecution of this Agreement. Furthermore, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement Customer Contracts shall not be included in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 Section ------- 5.14 of the Disclosure Schedule are separately identified by type until five (5) days following the ---- execution of agreement. The description of this Agreement, at which time an update with all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and information shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject provided to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the CompanyBuyer.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or attached Contracts Schedule, and except for agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), entered into by the Company or its Subsidiaries after the date hereof not in violation of Section 7.01, neither the Company nor any of its Subsidiaries is not a party to any written or oralany:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsagreement;
(ii) contract material bonus, incentive, pension, employee profit sharing, retirement or other form of compensation plan, other than as described in Section 4.13 or the Employee Benefits Schedule (other than any such plan that is sponsored by or to which contributions are mandated by any Governmental Entity and other than standard offer letters and employment agreements in such jurisdictions where such offer letters and employment agreements are standard practice or required under applicable Law and other than Cash Bonus Plans);
(iii) equity-based, equity purchase, option or similar plan, agreement or arrangement, other than an equity purchase or equity-based agreement with an employee that has been performed and, to the extent equity remains outstanding in connection therewith, is reflected on the Capitalization Schedule;
(iv) Contract for the employment or engagement of any officer, director, individual employee or other Person person on a full-time, part-time, consulting, contractor full‑time or other consulting basis or relating to loans to officers, directors or Affiliates, providing for base salary compensation in excess of $250,000 per annum (other than as described in Section 4.13 or the Employee Benefits Schedule, standard offer letters substantially and employment agreements in the form made available to Buyer that provide for “at-will” such jurisdictions where such offer letters and employment agreements are standard practice or required under applicable Law and maybe be terminated by the Company upon less other than thirty (30) days’ noticeCash Bonus Plans);
(iiiv) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture Contract relating to borrowed money or other the incurrence of Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a except for Permitted LienLiens, on any asset or group material portion of the assets of the Company;
(v) GuarantyCompany or any of its Subsidiaries;
(vi) lease or agreement Contract under which the Company or any of its Subsidiaries guarantees any obligation for Indebtedness or makes any other material guaranty, except guarantees or other comfort letters by the Company or its Subsidiaries of the performance or obligations of the Company or any of its wholly owned Subsidiaries set forth in any Contract;
(vii) Contract that relates to any material swap, derivative, hedging or similar arrangements;
(viii) Contract under which it is lessee of of, or holds or operates any property, real or personal, personal property owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed exceeds $150,0001,000,000;
(viiix) lease or agreement Contract under which the Company it is lessor of or permits any third party Third Party to hold or operate any property, real or personal, owned or controlled by for which the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of annual rental exceeds $150,000, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer1,000,000;
(x) contract concerning the provision Contract with any of co-location and related services to the Company’s top thirty (30) customers, which services are used to fulfill obligations to provide software as measured by revenue received by the Company and data hosting services to customersits Subsidiaries during the 2014 fiscal year;
(xi) contract pursuant Contract with any of the Company’s top fifteen (15) suppliers of products or services, as measured by amount spent by the Company and its Subsidiaries during the 2014 fiscal year;
(xii) Contract relating to which the disposition or acquisition of material assets (other than those assets disposed of or acquired in the Ordinary Course of Business) or a material business by the Company or any of its Subsidiaries, or to any material merger or business combination with respect to the Company or any of its Subsidiaries (or former Subsidiaries, to the extent the Contract was entered into while such Subsidiary was a Subsidiary), in each case (A) since January 1, 2013 or (B) that provides for any potential future earn‑out payments or other similar payments of deferred or contingent purchase price or, with respect to Contracts entered into during the preceding six (6) years, any material continuing indemnification obligations;
(xiii) In‑License (other than of (i) Company Intellectual Property Rights owned by a third party are actually embedded commercially available off the shelf Software provided in Company Software“object code” format under standard commercially available terms, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Open Source Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) salesOut‑License, distribution, manufacturing, supply or franchise agreementother than non-exclusive licenses granted to customers in the Ordinary Course of Business to use the Company Products;
(xv) agreement Contract with a term of more than six (6) months any Third Party to develop or assign any material Intellectual Property, customize any Company Product or hold in escrow any Software the rights to which is not terminable by the are included in Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annuallyIntellectual Property;
(xvi) contract regarding votingmaterial partnership agreement, transfer joint venture agreement or other arrangements related similar Contract relating to the Company’s Capital Stock Company or warrants, options or other rights to acquire any of Capital Stock of its Subsidiaries, other than Contracts solely among the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to BuyerCompany and its wholly owned Subsidiaries;
(xvii) contract Contract imposing any material restriction on the right or agreement regarding ability of the Company or any indemnification provided of its Subsidiaries to (A) engage in any material line of business or compete with any other Person or in any geographic area, (B) acquire any product, asset or service from any other Person or (C) develop, sell, supply, distribute, offer, support or service any product, asset or technology to or by for any other Person, other than, in the Companycase of clause (A), including any contract regarding any indemnification provided customary limitations in In-License agreements with respect to Environmental the use of such licensed materials and Safety Requirements, except pursuant to site-based restrictions in client Contracts prohibiting the Company’s standard form of customer agreement Company and its Subsidiaries from (1) co-locating work from a client competitor in the form delivered same Company site or (2) utilizing personnel of the Company and its Subsidiaries servicing such client to Buyerservice any client competitor;
(xviii) contract Contract (A) imposing on the Company or agreement prohibiting it from freely engaging any of its Subsidiaries any material exclusivity or similar obligation, (B) imposing on any upstream Affiliate of the Company (including, following the Closing, the Purchaser and its Affiliates) (i) any material exclusivity or similar obligation or (ii) any “most favored nation” or similar obligation which would apply to the Purchaser or any of its Affiliates (other than the Company and its Affiliates) in France, Morocco or Brazil, (C) pursuant to which the Company or any of its Subsidiaries has granted any material right of first refusal or right of first offer or similar right to a Third Party, (D) between the Company or any of its Subsidiaries, on the one hand, and a Third Party, on the other hand, that limits or purports to limit in any material respect the ability of the Company or any of its Subsidiaries to sell, license, transfer, pledge or otherwise dispose of any business or competing anywhere material assets or (E) that requires the Company or any of its Subsidiaries to “take or pay” with respect to the purchase of any goods or services, other than, in the worldcase of clause (D), customary limitations in In-License agreements with respect to the use of such licensed materials and site-based restrictions in client Contracts prohibiting the Company and its Subsidiaries from (1) co-locating work from a client competitor in the same Company site or (2) utilizing personnel of the Company and its Subsidiaries servicing such client to service any client competitor; or
(xix) Contract pursuant to which the Company or any other agreement which is material to of its operations and business prospects or involves Subsidiaries has undertaken a consideration capital expenditure commitment in excess of $150,000 annually. To 1,000,000 that was not completed prior to the extent applicable, the Material Contracts identified on Schedule 5.11 date of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsLatest Balance Sheet.
(b) All of the contracts, leases, agreements and instruments Each Contract that is (or is required to have been) set forth in the Contracts Schedule is referred to herein as a “Material Contract”. True and correct copies of all Material Contracts, as amended and in effect, have been made available to the Purchaser and the Merger Sub prior to the date hereof (or, if entered into after the date hereof, made available to the Purchaser promptly thereafter).
(c) Neither the Company nor any of its Subsidiaries, nor to the Company’s knowledge any other party thereto, is in any material violation, breach or required to be set forth on Schedule 5.11(bdefault (with or without the giving of notice or the lapse of time or both) of the Disclosure Schedule are under any Material Contract, and each such Material Contract is valid, binding and enforceable in accordance with its terms against the CompanyCompany and its Subsidiaries, and as applicable, and, to the Company’s knowledge, against the each other party thereto, in accordance with their respective terms, and shall be is in full force and effect without penalty in accordance with their terms upon consummation effect, except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the transactions contemplated hereby, subject to (i) laws availability of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief performance and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Contracts Schedule, (i) neither the Company nor any of its Subsidiaries has performed, in all material respects, all obligations required provided or received any written notice of intention to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under terminate any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the CompanyContract.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. Schedule 1.01A contains an accurate and complete list of each contract, agreement or commitment relating to the Assets of the Seller or its Affiliates not otherwise listed in Schedule 1.01D or Schedule 5.05:
(a) Except as expressly contemplated by this Agreement to which the Seller or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company is not its Affiliates are a party and which requires total payments to any written or oral:
by the Seller of at least Two Hundred Fifty Thousand Dollars (i$250,000) pension, profit sharing, stock option annually (other than spot crude contracts, spot product contracts, transportation contracts, and crude supply contracts not fully dedicated to the Company Options granted under the Company Stock Plan on standard forms delivered to BuyerRefinery), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(iib) contract for to which the employment Seller or engagement of any officerits Affiliates are a party which has a remaining term longer than one (1) year, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated which requires total payments by the Company upon less than Seller of at least Two Hundred Fifty Thousand Dollars ($250,000) during such term and which is not terminable on thirty (30) or fewer days’ notice' notice without penalty;
(iiic) contract under to which the Company has advanced Seller or loaned its Affiliates are a party relating to indebtedness for borrowed money, including capital leases, security agreements relating thereto and any other Person amountsamendment or waiver thereof;
(ivd) to provide capital or funds by way of a loan or guaranty of a loan or any other form of guaranty, assurance, funding agreement or indenture relating other arrangement intended to borrowed money assure the payment or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted obligation by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of Two Hundred Fifty Thousand Dollars ($150,000 annually;250,000); and
(xvie) contract regarding votinginvolving any rights to throughput, transfer process, refine feedstocks or products at or from the Refinery; (collectively items (a) through (e), other arrangements related than contracts, agreements or commitments of the Seller or any Affiliate of Seller which have expired or have terminated at or prior to the Company’s Capital Stock or warrantsEffective Time in accordance with the procedures set forth in Section 10.01, options or other rights to acquire any of Capital Stock the "Commitments"). Each Commitment is a legal, valid and binding obligation of the CompanySeller, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and Affiliates enforceable against the CompanySeller or its Affiliates in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally and to general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Except as specified in Schedule 1.01A, the Company’s knowledgeSeller or its Affiliates are not, against the nor is any other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation default under any of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performedCommitments where such defaults would result, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereofaggregate, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations ofExcept as specified in Schedule 1.01A since the date of this Agreement, attempts the Seller or requests to renegotiate its Affiliates have not received written notice of cancellation or outstanding rights to renegotiate, any terms termination of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes Commitment from any party thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as Schedule 5.19 hereto (with paragraph references corresponding to those set forth on Schedule 5.11(abelow) contains a true and complete list of each of the Disclosure Schedule following contracts (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all written amendments and supplements thereto, have been delivered or oral contracts or agreements required made available to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”HHTI), to which STH or any of the Company STH Subsidiaries is not a party to or by which any written STH Hotel or oralthe Office Building is bound:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement all contracts providing for deferred the leasing or other compensation (including any bonuses management of one or other remuneration and whether in cash more of the STH Hotels or otherwise), to employees, former employees or consultants, the Office Building or any other employee benefit plan portion of one or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsmore of the STH Hotels;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeall STH Franchise Agreements;
(iii) contract under which the Company has advanced all material contracts providing for a commitment of employment or loaned any other Person amountsconsultation services for a specified or unspecified term;
(iv) agreement all contracts with any person containing any provision or indenture relating covenant prohibiting or materially limiting the ability of STH or any of the STH Subsidiaries to borrowed money or other Indebtedness or the mortgagingengage in any business activity, pledging hire employees, solicit customers or otherwise placing a Lien, other than a Permitted Lien, on compete with any asset or group of assets of the Companyperson;
(v) Guarantyall partnership, joint venture, stockholders' or other similar contracts with any person;
(vi) lease or agreement under which the Company is lessee all notes, debentures, bonds and other evidence of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000Indebtedness;
(vii) lease or agreement under which the Company is lessor of or permits all contracts relating to any third party to hold or operate any property, real or personal, owned or controlled by the Companybusiness combination;
(viii) contract all contracts between or group among STH or any of related contracts with the same party STH Subsidiaries, on the one hand, and any of their stockholders or group of affiliated parties affiliates, on the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of businesshand;
(ix) assignment, license, indemnification all collective bargaining or agreement with respect to any intangible property similar labor contracts; and (including any Intellectual Property Rightsx) granted all other contracts that involve the annual payment or made potential annual payment pursuant to the Companyterms of such contract, by or granted to STH or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use any of the Company for an aggregate fee, royalty or other consideration for any such software or group STH Subsidiaries of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, 25,000 or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration aggregate payments in excess of $150,000 annually;
100,000 that will not (xviA) contract regarding voting, transfer be fully performed on or other arrangements related prior to the Company’s Capital Stock or warrantsEffective Time, options or other rights to acquire any of Capital Stock of the Company, except pursuant (B) expire by their terms prior to the Company’s standard form of option agreement in the form delivered to Buyer;
Effective Time, or (xviiC) contract or agreement regarding any indemnification provided to or be cancelable by the CompanySurviving Entity, including any contract regarding any indemnification provided with respect to Environmental without penalty, upon not more than 30 days notice, including, without limitation, all leases, contracts for purchase and Safety Requirementssale of assets, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations advance booking contracts and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsbanquet contracts.
(b) All of the contracts, leases, agreements and instruments set forth or Each contract required to be set forth disclosed on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be 5.19 is in full force and effect without penalty and constitutes a legal, valid and binding agreement, enforceable in accordance with their its terms upon consummation and, except as disclosed on Schedule 5.19, neither STH, any of the transactions contemplated herebySTH Subsidiaries nor, subject to (i) laws the knowledge of general application relating STH, any other party to bankruptcysuch contract is in violation, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in breach or default under any such contract (or in breach of nor, as of the date hereof, in receipt of any claim of default with notice or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage lapse of time or the giving of notice or both would result be in a defaultviolation, breach or event of noncompliance by the Company default under any Material Contracts such contract), the effect of which, individually or instrument to which in the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penaltyaggregate, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have result in a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a true and correct copy of each The STH Franchise Agreements disclosed on Schedule 5.19 constitute all of the Material Contracts which are referred franchise or similar agreements necessary to on Schedule 5.11 operate and manage the STH Hotels and neither STH nor any STH Subsidiary has received any notice or has any knowledge of the Disclosure Schedule, together with all amendments, waivers an event of default or other changes theretotermination or proposed termination under any such STH Franchise Agreement.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on in Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each 4.12 hereto, neither Seller is a “Material Contract”), the Company is not a ------------- party to any or bound by, whether written or oral:
, any: (i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, whether formal or severance agreements, programs, policies or arrangements;
informal; (ii) contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
any severance agreements; (iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any asset or group of assets of the Company;
Purchased Assets; (iv) license or royalty agreements; (v) Guaranty;
lease or agreement under which either Seller is lessee of, or holds or operates, any personal property owned by any other party; (vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company either Seller is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
it; (viiivii) contract or group of related contracts with the same party for the purchase or group sale of affiliated parties raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of which more than six months or involves consideration in the aggregate a sum in excess of $150,00010,000 or which may not be terminable with less than six months' notice; (viii) contract relating to the distribution, other marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than purchase and sales orders incurred in the ordinary course of business;
$10,000; (ix) assignmentfranchise agreements; (x) contracts with any Insider; (xi) agreements, license, indemnification contracts or agreement with respect understandings pursuant to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company which either Seller subcontracts work to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
; (xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
or (xixxiii) any other agreement which is material to its operations and business prospects Sellers whether or involves a consideration not entered into in excess the ordinary course of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsbusiness.
(b) All Except as disclosed in Schedule 4.12, (i) all of the contracts, leases, ------------- agreements and instruments set forth of Schedule 4.12 are in full force and ------------- effect, have not been amended or required to be set forth on Schedule 5.11(b) modified as of the Disclosure Schedule Closing, and are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth no contract or commitment required to be disclosed on Schedule 5.11(b4.12 has been ------------- breached or canceled by the other party since December 31, 1997, (iii) no material customer or supplier has indicated that it will stop or decrease the rate of business done with either Seller, (iv) Sellers have performed all of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it Sellers in connection with the contracts or commitments required to be disclosed on Schedule 4.12, and is are not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach ------------- under any Material Contract contract or instrument commitment required to which be disclosed on the Company is a party; Schedule 4.12, ------------- (iiv) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has Sellers have no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject obligation pursuant to any penaltycontract set forth on Schedule 4.12 hereto, right of set-off or other charge by the other party thereto for late performance or delivery; and (vvi) as of the date hereof the Company has ------------- Sellers have no knowledge of any breach or anticipated breach by the any other parties party to any Material Contracts, lease, agreement, instrument or commitment to which they are partiescontract set forth on Schedule 4.12. The Company -------------
(c) Neither Seller is not a party to any Material Contracts contract or agreement under which it is required to purchase or sell goods or services or lease property above or below (as the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companycase may be) prevailing market prices and rates.
(cd) Buyer’s counsel has been supplied Sellers have provided Buyer with a true and correct copy of each of the Material Contracts all written contracts which are referred to on Schedule 5.11 of the Disclosure Schedule4.12 and has made available ------------- to Buyer those which are not required to be disclosed on Schedule 4.12, in each ------------- case together with all amendments, waivers or other changes thereto. Schedule -------- 4.12 contains an accurate and complete description of all material terms of all ---- oral contracts referred to therein.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) None of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company Acquired Companies is not a party to any written or oral:
any: (iA) bonus, pension, profit sharing, stock option (retirement, or other form of deferred compensation plan, other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)as described in this Section 4.10, employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultantsSection 4.14, or any other employee benefit plan or arrangementthe schedules to this Agreement including the Bonus Schedule; (B) stock purchase, stock option, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
similar plan; (iiC) contract for the employment or engagement of any officer, individual employee employee, or other Person person on a full-time, part-time, consulting, contractor time or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty consulting basis; (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(ivD) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging pledging, or otherwise placing a Lien, Lien (other than a Permitted Lien, ) on any asset or group of assets portion of the Company;
Acquired Companies' assets; (vE) Guaranty;
guaranty of any obligation for borrowed money or other guaranty; (viF) contract or option pursuant to which any of the Acquired Companies have the right or the obligation to purchase, lease, or otherwise acquire any interest in any Real Property; (G) lease or agreement under which the Company it is lessee of of, or holds or operates any property, real or personal, personal property owned by any other party, for which the annual rental exceeds $250,000; (H) except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any propertysteel contracts, real or personal, owned or controlled by the Company;
(viii) a contract or group of related contracts with the same party for the purchase of products or group services, under which the undelivered balance of affiliated parties the performance of which involves consideration in the aggregate such products and services has a selling price in excess of $150,000250,000; (I) except for Coiled Line Pipe Contracts, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignmentDownhole Purchase Orders, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software contract or group of related software licenses of no more than $150,000, except pursuant to contracts with the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third same party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its the sale of products or services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it the undelivered balance of such products or services has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration sales price in excess of $150,000 annually;
250,000; or (xviJ) contract regarding voting, transfer or other arrangements related to which prohibits the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it Company from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel Buyer either has been supplied with with, or has been given access to, a true and correct copy of each of the Material Contracts all written contracts which are referred to on Schedule 5.11 of the Disclosure Contracts Schedule, together with all material amendments, waivers or other changes thereto.
(c) None of the Acquired Companies has received notice of default nor, to Sellers' Knowledge, is in default under any contract listed on the Contracts Schedule, except for those trade payables incurred in the ordinary course of business consistent with past practices.
Appears in 1 contract
Sources: Stock Purchase Agreement (Maverick Tube Corporation)
Contracts and Commitments. (a) Except as expressly specifically contemplated by this Agreement or and except as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)"Contracts Schedule" attached hereto, the Company is not a party to any or bound by, whether written or oral, any:
(i) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, retirement or any other employee benefit form of deferred compensation plan or arrangementany stock purchase, stock option, hospitalization insurance or any collective bargaining agreement similar plan or any other contract with any labor unionpractice, whether formal or severance agreements, programs, policies or arrangementsinformal;
(ii) any contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeany severance agreements;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any asset of its assets;
(iv) agreements with respect to the lending or group investing of assets of the Companyfunds;
(v) Guarantylicense or royalty agreements;
(vi) lease or agreement under which the Company is lessee guaranty of or holds or operates any propertyobligation, real or personal, owned by any other party, except than endorsements made for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000collection;
(vii) lease or agreement under which the Company it is lessor lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company$10,000 annually;
(viii) contract or group of related contracts with the same party continuing over a period of more than six months from the date or group of affiliated parties the performance of which involves consideration in the aggregate in excess of dates thereof, not terminable by it on 30 days or less notice without penalties or involving more than $150,000, other than purchase and sales orders incurred in the ordinary course of business10,000;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting prohibits it from freely engaging in any business or competing anywhere in the world; or
(xixx) any other agreement which is material to its operations and business prospects it whether or involves a consideration not entered into in excess the Ordinary Course of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsBusiness.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth disclosed on Schedule 5.11(b) of the Disclosure Contracts Schedule, (i) no contract or commitment required to be disclosed on the Contracts Schedule has been breached or cancelled by the other party and the Company has performedno Knowledge of any anticipated breach by any other party to any contract set forth on the Contracts Schedule, (ii) no customer or supplier has indicated in writing or orally to the Company or the Seller that it shall stop or decrease the rate of business done with the Company or that it desires to renegotiate its contract or current arrangement with the Company, (iii) the Company has performed all material respects, all the obligations required to be performed by it in connection with the contracts or commitments required to be disclosed on the Contracts Schedule and is not in default under or in breach of norany contract or commitment required to be disclosed on the Contracts Schedule, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) and no event has occurred which with the passage of time or the giving of notice or both would result in a defaultdefault or breach thereunder, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iiiiv) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject obligation pursuant to any penaltycontract set forth on the Contracts Schedule, right of set-off or other charge by the other party thereto for late performance or delivery; and (vvi) each agreement is legal, valid, binding, enforceable and in full force and effect and will continue as such following the consummation of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companytransactions contemplated hereby.
(c) Buyer’s counsel The Seller has been supplied provided the Purchaser with a true and correct copy of each of the Material Contracts all written contracts which are referred required to be disclosed on Schedule 5.11 of the Disclosure Contracts Schedule, in each case together with all amendments, waivers or other changes theretothereto (all of which are disclosed on the Contracts Schedule). The Contracts Schedule contains an accurate and complete description of all material terms of all oral contracts referred to therein.
Appears in 1 contract
Contracts and Commitments. EXECUTION COPY
(a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) The Assumed Contracts shall consist of the Disclosure Schedule (all written or oral contracts to which any Seller is a party or agreements required is bound and which (i) are to be set forth on such schedule being referred performed in whole or in part after the Closing Date and (ii) relate to herein as the “Material Contracts” and each a “Material Contract”)Business, which include, without limitation, the Company is not a party contracts listed on Disclosure Schedule 3.07, or with respect to any written or oralthose contracts marked with an asterisk, such portion of the contract that relates to the Business. All such contracts with the following characteristics are listed on Disclosure Schedule 3.07:
(i) pension, profit sharing, stock option (other than requiring the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase expenditure of funds for goods or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether services in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsexcess of $2,500;
(ii) contract any marketing agreement or understanding including any chain marketing agreement, calendar marketing agreement, agreement for the employment scoreboard or engagement of any officersign display, individual employee promotional discount letter, special arrangements, whether providing for discounts, incentive awards or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeotherwise;
(iii) contract under which restricting the Company has advanced right of any Seller to compete, whether by restricting territories, customers or loaned otherwise, in any other Person amountsline of business or territory;
(iv) agreement requiring any Seller to purchase its requirements for any goods or indenture relating to borrowed money services from any one or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Companymore parties;
(v) Guarantywith any officer, director, or greater-than-five-percent-shareholder of any Seller with any spouse, in-law, child, sibling or parent of any such person or with any company or other organization in which any of the foregoing has, to Sellers' knowledge, a material direct or indirect financial interest;
(vi) lease relating to participation in a cooperative, partnership or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000joint venture;
(vii) lease or agreement under which the Company is lessor of or permits imposing confidentiality requirements on any third party to hold or operate any property, real or personal, owned or controlled by the CompanySeller;
(viii) contract for political contributions or group of related contracts with the same party for charitable contributions involving a commitment to make contributions for more than one year or group of affiliated parties the performance of which involves consideration involving more than $2,500 in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business;or individually; or
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made relating to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company distribution of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;products.
(xb) contract concerning the provision of co-location and related services to the Company, which services There are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which no (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, consignments or "sale or return" arrangements; (ii) Intellectual Property Rights owned by a third party for development tools are used any agreements requiring any Seller to develop Company Software;share any profits, revenues, cash flows or Taxes that EXECUTION COPY relate to the Business; or (iii) guarantees of the indebtedness of any customer of, or supplier to, the Business, or loans or advances other than accounts receivable to such persons or entities.
(xiic) warranty agreement No Seller has received any notice of cancellation or termination in connection with respect to any Assumed Contract. No party has repudiated any portion of any Assumed Contract. Each Assumed Contract is enforceable in all material respects in accordance with its services rendered terms in a manner that obtains for, or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicableimposes upon, the Material Contracts identified on Schedule 5.11 parties the primary benefits and obligations of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(bd) All Upon the consummation of the contractstransaction contemplated by this Agreement, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be each Assumed Contract will remain in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated herebyon substantially similar terms.
(e) To Sellers' knowledge, subject to (i) laws of general application relating to there are no pending or threatened bankruptcy, insolvency and the relief of debtorsinsolvency, and or similar proceedings with respect to any party to any Assumed Contract.
(iif) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no No event has occurred which that (whether with the passage or without notice, lapse of time or the giving happening or occurrence of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification event) would constitute a default thereunder by the any Seller or by any other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the CompanyAssumed Contract.
(cg) Buyer’s counsel has With respect to any Assumed Contracts that were originally between Consolidated and a third party, such Assumed Contracts have been supplied with a true and correct copy of each of the Material Contracts which are referred validly assigned by Consolidated to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers either or other changes theretoboth Sellers.
Appears in 1 contract
Sources: Asset Acquisition Agreement (Coca Cola Bottling Co Consolidated /De/)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(ain Section 3.18(a) of the CBI Disclosure Schedule Schedules (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material CBI Contracts” and each a “Material Contract”), the Company neither CBI nor any of its Subsidiaries is not a party to or bound by any of the following (whether written or oral:, express or implied):
(i) pensionemployment, profit sharingservices, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)independent contractor, employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise)consulting, to employeeschange-in-control, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor unionretention, or severance agreements, programs, policies contracts or similar arrangements;
(ii) contract for the employment or engagement collective bargaining agreements, memorandums of any officerunderstanding, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty contracts with any Union (30) days’ noticeas defined herein);
(iii) contract under which the Company has advanced bonus, stock option, restricted stock, stock appreciation, deferred compensation arrangement, profit-sharing plan, pension plan, retirement plan, welfare plan or loaned any other Person amountsemployee benefit agreement or arrangement;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) material lease or agreement under which the Company is lessee of or holds or operates license with respect to any property, real or personal, owned by any other partywhether as landlord, except tenant, licensor or licensee;
(v) contract or commitment for any lease capital expenditures in excess of real $50,000 in the aggregate;
(vi) material contract or personal property under which commitment for the aggregate annual rental payments do purchase of materials or supplies or for the performance of services over a period of more than sixty (60) days after the date of this Agreement and not exceed $150,000terminable upon notice of sixty (60) days or less;
(vii) lease contract or agreement under which the Company is lessor of option to purchase or permits sell any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, personal property other than any contract for the purchase and sales orders incurred of personal property in the ordinary course of business;
(ixviii) assignmentcontract, license, indemnification agreement or agreement letter with respect to the management or operations of CBI or CSB imposed by any intangible property Governmental Body having supervisory jurisdiction over CBI or CSB;
(including any Intellectual Property Rightsix) granted note, debenture, agreement, contract or made indenture related to the Company, borrowing by CBI or granted or made by the Company to third parties, except licenses granted by a third party to the Company any of commercially available, unmodified, “off the shelf” software used solely for the internal use its Subsidiaries of the Company for an aggregate fee, royalty or money other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement those entered into in the form delivered to Buyerordinary course of business;
(x) contract concerning guaranty of any obligation for the provision borrowing of co-location money, excluding endorsements made for collection, repurchase or resell agreements, letters of credit and related services to guaranties made in the Company, which services are used to fulfill obligations to provide software and data hosting services to customersordinary course of business;
(xi) contract pursuant agreement with or extension of credit to which any executive officer or director of CBI or any of its Subsidiaries or holder of ten percent (i10%) Company Intellectual Property Rights owned by a third party are actually embedded in Company Softwareor more of the issued and outstanding CBI Stock, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Softwareany affiliate of such person;
(xii) warranty agreement with respect any executive officer or director of CBI or any of its Subsidiaries or holder of ten percent (10%) or more of the issued and outstanding CBI Stock or any affiliate of such person, relating to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyerbank owned life insurance (“BOLI”);
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights)lease of real property;
(xiv) salesany agreement containing covenants that limit the ability of CBI or any of its Subsidiaries to compete in any line of business or with any Person, distributionor that involve any restriction on the geographic area in which, manufacturingor method by which, supply CBI (including any successor thereof) or franchise agreementany of its Subsidiaries (including any successor thereof) may carry on its business (other than as may be required by law or any Governmental Body);
(xv) any data processing or other electronic banking services agreement with a term or contract which may not be terminated without payment or penalty upon notice of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annuallydays or less;
(xvi) contract regarding voting, transfer any agreement pursuant to which CBI or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant its Subsidiaries may become obligated to the Company’s standard form of option agreement invest in the form delivered or contribute capital to Buyerany Person;
(xvii) contract or any agreement regarding any indemnification provided to or by between CSB, on the Companyone hand, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirementsa Person listed on Section 3.1(e) of the CBI Disclosure Schedules, except pursuant to on the Company’s standard form of customer agreement in other hand (the form delivered to Buyer;“Affiliate Agreements”); or
(xviii) contract contracts, other than the foregoing, with payments aggregating $50,000 or agreement prohibiting it from freely engaging in any business or competing anywhere more not made in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess ordinary course of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsbusiness.
(b) All of Each CBI Contract is legal, valid and binding on CBI or its Subsidiaries, as the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Companycase may be, and to the Company’s knowledgeknowledge of CBI, against the other party parties thereto, enforceable by CBI or its Subsidiaries, as the case may be, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their its terms upon consummation of the transactions contemplated hereby, (subject to (i) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application relating to bankruptcy, insolvency creditors’ rights generally and the relief general equitable principles). Each of debtors, CBI and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company its Subsidiaries has performed, performed in all material respects, respects all obligations required to be performed by it to date under each CBI Contract and is not in default under there are no existing material defaults by CBI or in breach of norits Subsidiary, as the case may be, or, to the knowledge of CBI, the date hereofother party thereunder and, in receipt to the knowledge of CBI, there are no allegations or assertions of such by any claim of default or breach party under any Material such CBI Contract or instrument to which the Company is a party; (ii) no event has occurred which any events that with the passage notice, lapse of time or the giving happening or occurrence of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject event would be reasonably likely to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are partiesconstitute a default thereunder. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a A true and correct complete copy of each of the Material Contracts which are referred CBI Contract has been delivered or made available to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes theretoSTXB.
Appears in 1 contract
Sources: Merger Agreement (Spirit of Texas Bancshares, Inc.)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company VSTR is not a party to any written of the following, whether oral or oral:
written, which are currently in effect, and which relate to the operation of VSTR’s business: (i) collective bargaining agreement or contract with any labor union; (ii) bonus, pension, profit sharing, stock option retirement or other form of deferred compensation plan; (iii) hospitalization insurance or other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)welfare benefit plan or practice, employee whether formal or informal; (iv) stock purchase or other plan or arrangement providing for deferred or other compensation stock option plan; (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(iiv) contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans severance pay for any such person, except as disclosed in Form 10-K for the year ended April 30, 2020; (vi) confidentiality agreement; (vii) contract, agreement or understanding relating to officers, the voting of VSTR Common Stock or the election of directors or Affiliatesof VSTR, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty Voting Agreement ; (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(ivviii) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, lien on any asset or group of the assets of VSTR, except as disclosed in Form 10-K for the Company;
year ended April 30, 2020; (vix) Guaranty;
guaranty of any obligation for borrowed money or otherwise, except as disclosed in Form 10-K for the year ended April 30, 2020; (vix) lease or agreement under which the Company VSTR 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 payments do not exceed exceeds $150,000;
50,000; (viixi) lease or agreement under which the Company VSTR is lessor of of, or permits any third party to hold or operate operate, any property, real or personal, owned for which the annual rental exceeds $50,000; (xii) contract which prohibits VSTR from freely engaging in business anywhere in the world; (xiii) license agreement or controlled agreement providing for the payment or receipt of royalties or other compensation by VSTR in connection with the Company;
Intellectual Property rights; (viiixiv) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate commitment for capital expenditures in excess of $150,000, 50,000; (xv) agreement for the sale of any capital asset; (xvi) contract with any VSTR Subsidiary any Affiliate thereof or of VSTR (other than purchase and sales orders incurred for employment on customary terms); (xvii) contracts, understandings, arrangements or commitments with respect to the use by VSTR of Intellectual Property of others or by others of Intellectual Property of VSTR; or (xviii) other agreement which is either material to VSTR’s business or was not entered into in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contractsTo VSTR’s Knowledge , leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company VSTR has performed, in all material respects, performed all obligations required to be performed by it VSTR in connection with all contracts, understandings, arrangements and commitments to which VSTR is a party and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract such contract, understanding, arrangement or instrument to which the Company is a partycommitment; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company VSTR has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject material obligation pursuant to any penaltysuch contract, right of set-off understanding, arrangement or other charge by the other party thereto for late performance or deliverycommitment; and (v) as of the date hereof the Company VSTR has no knowledge Knowledge of any breach or anticipated breach by the any other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations ofsuch contract, attempts understanding, arrangement or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companycommitment.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Merger Agreement (ValueSetters Inc.)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) in the Contracts Schedule, SCHEDULE 3.10, neither the Company nor either of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company FBOs is not a party to any contract or agreement, written or oral:
(i) for a bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)retirement, employee stock deferred compensation, medical or life insurance plan, membership purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, option or any other employee benefit plan plans or arrangement, arrangements providing for benefits of any type to employees (either current or former) of any collective bargaining agreement of the Company or any other contract with any labor union, or severance agreements, programs, policies or arrangementseither FBO;
(ii) contract for collective bargaining or with any labor union;
(iii) for the employment borrowing of money or engagement mortgaging, pledging or encumbering any of the Company's or the FBOs' respective assets;
(iv) for the lending or investing of funds to or in other persons or entities;
(v) granting any officer, individual employee power of attorney (irrevocable or other Person on a full-time, part-time, consulting, contractor or other basis or otherwise) to any person for any purpose relating to loans to officers, directors the respective Businesses or Affiliatesthe Company's or the FBOs' respective assets, other than powers of attorney given to regulatory authorities in connection with routine qualifications to do business; or
(vi) with an Affiliate of any of Sellers, the offer letters substantially in Company or the form made available to Buyer that provide FBOs (other than the Company's and the FBOs' Charter Documents).
(b) The Contracts Schedule lists each of the Material Contracts. For purposes of this Agreement, "MATERIAL CONTRACTS" includes the following:
(i) any and all contracts for “at-will” employment and maybe be terminated the sale of goods or services by the Company upon or either of the FBOs with a value in excess of $25,000 individually or $100,000 in the aggregate, or which is not terminable without penalty by or on behalf of the Company or the FBOs on less than thirty 90 days' notice;
(30ii) any and all contracts, agreements, licenses, leases (other than the Leases), sales and purchase orders and other legally binding commitments that obligate the Company or either of the FBOs to pay, assume, guaranty or secure an amount of $25,000 or more individually or $100,000 or more in the aggregate or that cannot be terminated without penalty by or on behalf of the Company or the FBOs on less than 90 days’ ' notice;
(iii) contract under which any and all contracts between the Company has advanced or loaned either of the FBOs on the one hand and any Affiliate of the Company or either FBO on the other Person amountshand (other than the Company's and the FBOs' Charter Documents);
(iv) agreement any and all broker, distributor, dealer, representative or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Companyagency agreements;
(v) Guarantyany and all insurance policies insuring either of the Businesses, either of the Facilities or any of the Company's or FBOs' respective assets (collectively, the "INSURANCE POLICIES");
(vi) lease any and all employment, non-competition or consulting agreement under which the Company that is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000currently in effect;
(vii) lease or agreement under which each contract containing covenants purporting to materially limit the freedom of the Company is lessor or the FBOs to compete in any line of business or permits in any third party to hold or operate any property, real or personal, owned or controlled by the Companygeographic area;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of businessany factoring agreements;
(ix) assignmenteach partnership, license, indemnification joint venture or other similar agreement with respect or arrangement to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by which the Company to third parties, except licenses granted by or either FBO is a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;party; and
(x) contract concerning the provision any and all agreements requiring a loan, advance or guaranty of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable Funded Indebtedness by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock either of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsFBOs.
(bc) All Sellers have delivered to Buyer true and complete copies of all written Material Contracts, together with all amendments and supplements thereto. A description of the contractsprincipal terms and conditions of each oral Material Contract, leasesif any, agreements and instruments set forth or required to be is set forth on Schedule 5.11(b) of the Disclosure Schedule Contracts Schedule. The Material Contracts are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of and are enforceable against the transactions contemplated herebyCompany or the respective FBOs, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtorsas applicable, and (ii) rules to the best of law governing specific performance, injunctive relief and Sellers' knowledge all other equitable remediesparties thereto. Except as set forth on Schedule 5.11(b) of the Disclosure Contracts Schedule, (i) none of Sellers, the Company nor either FBO has performedreceived any notice that it is in default under, in all material respects, all obligations required to be performed by it and is or not in default under or in breach of norcompliance with any material provision of, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; Contract, (ii) none of Sellers, the Company nor either FBO has delivered any notice to another party alleging any default under, or failure to comply with any material provision of, any Material Contract, and (iii) with respect to the Material Contracts, no event has occurred which that, with notice, the passage of time or the giving of notice or both would result in constitute (A) a default, breach or event of noncompliance default by the Company under any Material Contracts or instrument to which the FBOs, or (B) a failure of the Company is or the FBOs to comply with a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms material provision of any of the Material Contracts Contracts, or (C) to the best of Sellers' knowledge, otherwise give any party a right of termination or modification thereof. Except as set forth on SCHEDULE 3.10(C), to the part best of Seller's knowledge, the consummation of the Companytransactions contemplated by this Agreement would not give any party to a Material Contract the right to terminate or cancel the terms of such Material Contract.
(cd) Buyer’s counsel has been supplied with Set forth on SCHEDULE 3.10(D) is a true and correct copy list of the twenty-five (25) largest customers of each FBO by gallons of fuel purchased in the 2003 calendar year. Other than the customers set forth on SCHEDULE 3.10(D), no other customer accounted for more than five percent (5%) of the Material Contracts which are referred to on Schedule 5.11 gallons of fuel purchased by customers of either FBO in the 2003 calendar year. None of Sellers, the Company or either of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.FBOs has received any notice from any of the customers listed on SCHEDULE 3.10
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Macquarie Infrastructure Assets LLC)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set SCHEDULE 4.23 sets forth on Schedule 5.11(a) a list of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company is not a party to any written or oral:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related ------------------------- ------------- Cotton Group Companies' contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess customers with an estimated value of $150,000, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification 50,000.00 or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remediesmore. Except as set forth on Schedule 5.11(bSCHEDULES 4.10(d) (Leases), 4.11 ----------------- ---- (Indebtedness), 4.12(d) AND (b) (Intellectual Property), 4.15(a)(i) (Employee ----------------- ---------- Benefit Plans), 4.16 (Collective Bargaining), 4.21 (Insurance Policies), and ---- ---- 4.23 (Contracts and Commitments): ----
(a) The Cotton Group Companies do not have any outstanding contract, written or oral, with any officer, employee, agent, consultant, advisor, salesman, manufacturer's representative, distributor, dealer, subcontractor, or broker that is not cancelable by the Cotton Group Companies on notice of not longer than thirty (30) days and without liability, penalty or premium of any kind, except liabilities which arise as a matter of law upon termination of employment, or any agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings;
(b) The Cotton Group Companies are not under any liability or obligation under any agreement pursuant to which third parties have been provided with products that can be returned to the Cotton Group Companies in the event they are not sold and which could involve a liability of the Disclosure Schedule, Cotton Group Companies of $25,000 or more in the aggregate;
(c) The Cotton Group Companies do not have (i) any outstanding loan or loan commitment (excluding credit extended in the Company has performedOrdinary Course of Business to purchasers of job materials) to any person, or (ii) any factoring, credit line or subordination agreement;
(d) Except as noted on SCHEDULE 4.11 (Indebtedness) and except for ------------- negotiable instruments in all material respectsthe process of collection, all obligations required to be performed by it and is the Cotton Group Companies do not in default under have any power of attorney outstanding or in breach of norany contract, commitment or liability (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor in respect of the date hereof, in receipt contract or commitment of any claim other person, corporation, partnership, joint venture, association, organization or other entity;
(e) There are no contracts or agreements with any director, officer, partner or shareholder of default any Cotton Group Company, or breach under with any Material Contract person related to any such person or instrument with any company or other organization in which any director, officer, partner or shareholder of any Cotton Group Company, or anyone related to which any such person, has a direct or indirect financial interest;
(f) The Cotton Group Companies are not subject to any contract or agreement containing covenants limiting the freedom of any Cotton Group Company to compete in any line of business in any geographic area or requiring any Cotton Group Company to share any profits;
(g) There is no contract, agreement or other arrangement entitling any person or other entity to any profits, revenues or cash flows of any Cotton Group Company or requiring any payments or other distributions based on such profits, revenues or cash flows; and
(h) To the Knowledge of the Cotton Group Companies or any Seller, no Cotton Group Company is a party; (ii) no event has occurred which with the passage of time party to or the giving of notice bound by any presently or both would result in a defaultpreviously existing contract, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off agreement or other charge by arrangement that has had or may in the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to future have a Material Adverse EffectEffect upon the Cotton Group Business, earnings or financial condition of any Cotton Group Company. There are no renegotiations ofThe Cotton Group Companies have made available to Purchaser true, attempts correct and complete copies of all contracts, agreements, plans, leases, policies and licenses referred to, or requests required to renegotiate be referred to or outstanding rights to renegotiatelisted on, any terms of any of the Material Contracts on the part of the CompanySchedule delivered hereunder.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Stock and Limited Partnership Interest Purchase Agreement (Charys Holding Co Inc)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule in SCHEDULE 2.19 (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” "Contracts and each a “Material Contract”Commitments"), the Sellers and each Acquired Company is not a party to any written have provided or oral:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “ata complete, accurate list of, or made available to Buyer copies of each of the following (each a "Company Commitment") to which an Acquired Company is a party or by which any of its properties is bound and which presently remains executory in whole or in any part: (i) each partnership or joint venture agreement; (ii) each guaranty or suretyship, indemnification or contribution agreement or performance bond (other than any Guaranty limited as to recourse to no more than Five Thousand Dollars ($5,000) and any Guaranty of any automobile or other vehicle retail installment sales contract entered into and sold to a financial institution in the ordinary course of business); (iii) each instrument, agreement or other obligation evidencing or relating to indebtedness of an Acquired Company involving more than Twenty-will” employment Five Thousand Dollars ($25,000) in any single case, or to money lent or to be lent to another Person involving more than One Hundred Thousand Dollars ($100,000) in the aggregate, other than any of its dealership customers in connection with the purchase, or the refinancing of the purchase, of any vehicle; (iv) each contract to purchase or sell real property; (v) each agreement with brokers of motor vehicles or sales or commission agents, public relations or advertising agencies, accountants or attorneys (other than in connection with this Agreement and maybe be terminated by the Company upon less transactions contemplated hereby) involving total payments within any twelve (12) month period in excess of Ten Thousand Dollars ($10,000) and which is not terminable without penalty and no more than thirty (30) days’ ' prior notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
; (vi) lease or agreement under which the Company is lessee of or holds or operates each Related Party Agreement involving total payments within any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
twelve (vii12) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate month period in excess of Ten Thousand Dollars ($150,000, other than purchase 10,000) and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less without penalty on no more than thirty (30) days’ notice without penalty ' prior notice; (vii) each contract containing any noncompetition agreement, covenant or undertaking; (viii) each dealer sales and involves service agreement to which an Acquired Company is a consideration in excess party and each other agreement providing for the purchase from a supplier of $150,000 annually;
all or substantially all the requirements of an Acquired Company of a particular product or service; or (xviix) contract regarding voting, transfer each other agreement or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement commitment not made in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form ordinary course of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsAcquired Companies.
(b) All True, correct and complete copies of the contracts, leases, agreements and instruments all written Company Commitments have heretofore been delivered or made available to Buyer. Except as accurately set forth in SCHEDULE 2.19: (i) there are no existing or required asserted defaults, events of default or events, occurrences, acts or omissions that, with the giving of notice or lapse of time or both, would constitute defaults or events of default under any Company Commitment material to be set forth on Schedule 5.11(b) the Acquired Companies by an Acquired Company or, to the Knowledge of the Disclosure Schedule are valid, binding and enforceable against the each Seller or Acquired Company, and to the Company’s knowledge, against the any other party thereto; and (ii) no penalties have been incurred, nor are amendments pending, with respect to the Company Commitments that are material to the Acquired Companies. All Company Commitments are in full force and effect and are valid and enforceable obligations of the Acquired Company, and, to the Knowledge of each Seller and Acquired Company, the other parties thereto in accordance with their respective termsterms and no defenses, and shall be in full force and effect without penalty in accordance with their terms upon consummation off-sets or counterclaims have been asserted or, to the Knowledge of the transactions contemplated herebyAcquired Companies, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to may be performed made by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to (other than by an Acquired Company), nor has an Acquired Company waived any penaltyrights thereunder, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) except as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companydescribed in SCHEDULE 2.19.
(c) Buyer’s counsel has been supplied with Except as disclosed in SCHEDULE 2.19 or contemplated hereby or by any other Transaction Document to which an Acquired Company or Stockholder is a true and correct copy of each party, none of the Material Contracts Acquired Companies or Sellers has received notice of any plan or intention of any other party to any Company Commitment that is material to the Acquired Companies to exercise any right to cancel or terminate that Company Commitment, and neither the Acquired Companies nor Sellers has Knowledge of any condition or state of facts which are referred to on Schedule 5.11 would justify the exercise of the Disclosure Schedule, together with all amendments, waivers or other changes theretosuch a right.
Appears in 1 contract
Contracts and Commitments. To the best of Seller’s Knowledge:
(a) Except except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)3.14, the Company Agency is not a party to or bound by any written or oral:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)option, employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan plan, arrangement or arrangementAgency, whether formal or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsinformal;
(ii) management agreement or contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor consulting or other basis (1) providing for the payment of any cash or relating other compensation or benefits upon the consummation of the transactions contemplated hereby or (2) otherwise restricting its ability to loans to officers, directors terminate the employment of any employee at any time for any lawful reason or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeno reason without penalty or liability;
(iii) contract under which the Company has advanced or loaned agreement involving any other Person amountsGovernment Entity;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any material asset or material group of assets of the CompanyAgency or any letter of credit arrangements, or any guarantee therefor;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties continuing over a period of more than six months from the performance date or dates thereof, not terminable by either of which involves consideration in the aggregate in excess of Agency upon 30 days’ or less notice without penalty or involving more than $150,000, other than purchase and sales orders incurred in the ordinary course of business10,000;
(ixvi) assignmentagreements relating to the ownership of, Investments in or loans and advances to any Person, including Investments in joint ventures and minority equity investments;
(vii) license, royalty, indemnification or other agreement with respect to any intangible property (including any Intellectual Property Rights);
(viii) granted agent, sales representative, sales or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company distribution agreement;
(ix) power of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty attorney or other consideration for any such software similar agreement or group grant of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyeragency;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world, including, without limitation, any nondisclosure or confidentiality agreements; or
(xixxi) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 10,000 annually. To , whether or not in the extent applicable, the Material Contracts identified on Schedule 5.11 ordinary course of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsbusiness.
(b) All To the best of Sellers’ Knowledge, all of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b3.12 (the “Material Contracts”) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and . Each of the Material Contracts shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel The Purchaser has been supplied with a true true, complete and correct copy of each of the written Material Contracts which are referred to on Schedule 5.11 of the Disclosure ScheduleContract, together with all amendments, waivers or other changes theretothereto (all of which amendments, waivers or other changes thereto are described on Schedule 3.12).
Appears in 1 contract
Sources: Stock Purchase Agreement (Healthessentials Solutions Inc)
Contracts and Commitments. Except as disclosed on Schedule 2.25 to the Disclosure Schedule:
(a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company Parent is not nor is any Subsidiary, with respect to its business, a party to any oral or written or oralcontract:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, that prohibits Parent or any other employee benefit plan of its Subsidiaries from freely engaging or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementscompeting in its line of business anywhere in the world;
(ii) contract for the employment or engagement of any officer, individual employee or other Person that is not on a fullarms-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticelength terms;
(iii) contract under pursuant to which the Company Parent or any of its Subsidiaries has advanced incurred or loaned any other Person amountsaccrued losses;
(ivIv) agreement that commits Parent or indenture relating any of its Subsidiaries to borrowed money purchase or other Indebtedness sell any properties or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets outside of the Companyordinary course of business for consideration in excess of $100,000;
(v) Guaranty;
(vi) lease that involves an unfulfilled obligation, individually or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate aggregate, in excess of $150,000, other than purchase 100,000 and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company Parent or any of its Subsidiaries upon less than thirty (30) 60 calendar days’ ' notice without penalty and involves for a consideration in excess cost of not less than $150,000 annually100,000;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All Since December 31, 1997, none of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation Parent's or any other modification by of its Subsidiaries' significant customers, suppliers, outside service providers or sources of referral has indicated that it will stop or materially decrease the other party thereto rate of business done with or is subject referred to either Parent or any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companysuch Subsidiary.
(c) Buyer’s counsel To the Knowledge of Parent, neither Parent nor any of its Subsidiaries is obligated to (i) purchase any property or services at a price greater than the prevailing market price, (ii) sell any property or services at a price less than the prevailing market price, (iii) pay rentals or royalties at a rate greater than the prevailing market price or (iv) act as lessor or licensor at a rate less than the prevailing market price.
(d) The Company has been supplied with a true and correct copy of each of the Material Contracts all written contracts which are referred to on Schedule 5.11 of the Disclosure Schedule2.25, together with all amendments, exhibits, attachments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), Neither the Company nor any of its Subsidiaries is not a party to to, or is bound by, any written or oralContract:
(i) pensionproviding for aggregate future noncontingent payments by or to the Company or any of its Subsidiaries in excess of $500,000 in any fiscal year, profit sharing, stock option (other than Contracts with an employee, consultant or independent contractor relating to employment or the Company Options granted under provision of services or Contracts that are terminable upon 90 days or fewer notice or that expire pursuant to their terms no later than 120 days after the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsdate hereof;
(ii) contract for limiting the employment freedom of the Company to engage in any line of business or engagement of sell, supply or distribute any officerservice or product (including with respect to the pricing thereof), individual employee or other Person on a full-timeto compete with any entity or to conduct business in any geography, part-time, consulting, contractor or other basis or relating that grants any exclusive rights to loans to officers, directors or Affiliates, any party (other than the offer letters substantially in the form made available to Buyer that provide for “atany (x) non-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred exclusive licenses entered into in the ordinary course of business, (y) Contracts for which noncontingent payments by or to the Company or any of its Subsidiaries do not exceed $500,000 in any fiscal year or (z) Contracts that are terminable upon 90 days or fewer notice or that expire pursuant to their terms no later than 120 days after the date hereof) where such limitations or restrictions would have a Material Adverse Effect;
(iii) involving any joint venture, partnership or similar arrangement that is material to the Company and its Subsidiaries, taken as a whole;
(iv) pursuant to which the Company or any Subsidiary incurs, assumes or guarantees any Indebtedness for borrowed money in excess of $500,000;
(v) containing severance or termination pay Liabilities related to termination of employment in excess of $200,000 (individually to any employee);
(vi) providing for the supply, manufacturing, distribution or development of Company Products (where the remaining aggregate noncontingent payments to or by the Company are in excess of $500,000);
(vii) providing for the acquisition, transfer, in-bound licensing, out-bound licensing, development, co-development, or sharing of any material Intellectual Property or Software or materially affecting the ability of the Company or any of its Subsidiaries to use or disclose any Intellectual Property or Software (other than license agreements providing for for commercially available software on standard terms and non-exclusive distribution, reseller and end-user customer and other non-exclusive agreements entered into in the ordinary course of business);
(viii) that prohibits the payment of dividends or distributions in respect of the share capital of the Company or any of its Subsidiaries, prohibits the pledging of the share capital of the Company or any of its Subsidiaries or prohibits the issuance of guarantees by any of its Subsidiaries;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by that is a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to BuyerCollective Bargaining Agreement;
(x) contract concerning that provided for any acquisition of another entity by the provision Company or its Subsidiaries pursuant to which the Company or any of co-location and related services to the Companyits Subsidiaries has continuing indemnification, which services are used to fulfill obligations to provide software and data hosting services to customers;"earn out" or other contingent payment or guarantee obligations; or
(xi) contract pursuant that contains any material covenant granting "most favored nation" status that, following the Merger, would apply to which (i) or be affected by actions taken by Parent, the Surviving Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, and/or their respective Subsidiaries or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to Affiliates. Each Contract of the Company’s standard form of customer agreement type described in the form delivered to Buyer;
(xiiiimmediately preceding sentence, together with each of the Leased Real Property Subleases and Leases set forth on Section 3.11(d) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty Disclosure Letter, is collectively referred to herein as a "Company Material Contract." The Company has heretofore made available to Parent a complete and involves a consideration in excess correct copy of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Companyeach Company Material Contract, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract amendments or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsthereto.
(b) All Each Company Material Contract is binding on the Company or its Subsidiary party thereto and, to the Knowledge of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the each other party thereto, in accordance with their respective terms, and shall be is in full force and effect without penalty in accordance with their terms upon consummation effect, and, to the Knowledge of the transactions contemplated herebyCompany, enforceable against each other party thereto (in each case, subject to (i) laws of general application relating to bankruptcythe Bankruptcy and Equity Exception), insolvency and the relief Company and each of debtorsits Subsidiaries have performed all obligations required to be performed by them under each Company Material Contract and, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) to the Knowledge of the Disclosure ScheduleCompany, (i) the each other party to each Company Material Contract has performed, in all material respects, performed all obligations required to be performed by it and is under such Company Material Contract, in each case except as would not in reasonably be expected to have a Company Material Adverse Effect. To the Knowledge of the Company, the Company has not received during the last twelve (12) months, notice of any violation or default under (or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which condition that with the passage of time or the giving of notice notice, or both both, would result in cause such a defaultviolation of or default under) any Company Material Contract, breach except for violations or event of noncompliance by the Company under any Material Contracts defaults that would not have or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Company Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a true and correct copy of each To the Knowledge of the Material Contracts which are referred to on Schedule 5.11 Company, as of the Disclosure Scheduledate hereof, together no event has occurred, and no circumstance or condition exists, that (with all amendmentsor without notice or lapse of time), waivers would reasonably be expected to: (i) result in a material violation or other changes theretobreach of any provision of any Company Material Contract, (ii) give any Person the right to declare a default under any Company Material Contract, or (iii) give any Person the right to cancel terminate or modify any Company Material Contract, in each case, as would not have or would reasonably be expected to have a Company Material Adverse Effect.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly specifically contemplated by this Agreement or as set forth on any Schedule 5.11(a) attached to this Agreement, neither Seller nor any of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company its Subsidiaries is not a party to any or bound by, whether written or oral:
, any (with respect to the Business): (i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, whether formal or severance agreements, programs, policies or arrangements;
informal; (ii) contract for the employment or engagement of any officer, individual employee or group of employees or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
any severance agreements; (iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a LienLien on any of the Business Assets; (iv) agreements with respects to the lending or investing of funds; (v) guaranty of any Indebtedness for Borrowed Money or otherwise, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
endorsements made for collection; (vi) lease license, sublicense or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
royalty agreements; (vii) lease or agreement under which the Company Seller is lessee of, or holds or operates, any personal property owned by any other party for which annual rental exceeds $2,500; (viii) lease or agreement under which Seller is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
it for which annual rental exceeds $2,500; (viiiix) contract or group of related contracts with the same party for the purchase or group sale of affiliated parties raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of which more than 3-months or involves consideration in the aggregate a sum in excess of $150,0002,500 or which may not be terminable with less than 3-months notice; (x) contract relating to the distribution, marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than $2,500; (xi) franchise agreements; (xii) contract which prohibits them from freely engaging in business anywhere in the world; (xiii) agreements, contracts or understandings pursuant to which Seller subcontracts work to third parties; or (xiv) any other than purchase and sales orders incurred agreement material to Seller or the Business, whether or not entered into in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contractsExcept for this Agreement, leases, agreements any schedule hereof and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject Seller is not a party to or bound by any agreement, whether written or oral, pertaining to any sale, liquidation, dissolution, recapitalization, restructuring or refinancing of Seller or any acquisition of the issued or unissued capital stock or other securities of Seller or any substantial portion of the Business Assets (iincluding any acquisition structured as a merger, consolidation or share exchange).
(c) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth specifically contemplated by this Agreement, or disclosed on Schedule 5.11(b) of the Disclosure Schedule4.11, (i) no contract or commitment required to be disclosed on Schedule 4.11 has been, to the Company knowledge of the Stockholders' and Seller, breached or canceled by the other party, (ii) no material customer or supplier has performedadvised Seller in writing that it will stop or decrease the rate of business done with Seller, in and (iii) Seller has performed all material respects, all of the obligations required to be performed by it Seller in connection with the contracts or commitments required to be disclosed on Schedule 4.11, and is not in default under or in breach of nor, as of the date hereof, in receipt of any written claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument contract or commitment required to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts disclosed on the part of the CompanySchedule 4.11.
(cd) Buyer’s counsel Seller has been supplied provided Buyer with a true and correct copy copies of each of the Material Contracts all written contracts which are referred to on Schedule 5.11 of the Disclosure Schedule4.11, together with all amendments, waivers or other changes thereto. Schedule 4.11 also contains a summary description of all material terms of all oral contracts referred to therein.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as Schedule 7.19 hereto (with paragraph references corresponding to those set forth on Schedule 5.11(abelow) contains a true and complete list of each of the Disclosure Schedule following contracts (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all written amendments and supplements thereto, have been delivered or oral contracts or agreements required made available to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”STH), to which HHTI or any of the Company HHTI Subsidiaries is not a party to or by which any written or oralHHTI Hotel is bound:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement all contracts providing for deferred the leasing or other compensation (including any bonuses management of one or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, more of the HHTI Hotels or any other employee benefit plan portion of one or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsmore of the HHTI Hotels;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeall HHTI Franchise Agreements;
(iii) contract under which the Company has advanced all material contracts providing for a commitment of employment or loaned any other Person amountsconsultation services for a specified or unspecified term;
(iv) agreement all contracts with any person containing any provision or indenture relating covenant prohibiting or materially limiting the ability of HHTI or any of the HHTI Subsidiaries to borrowed money or other Indebtedness or the mortgagingengage in any business activity, pledging hire employees, solicit customers or otherwise placing a Lien, other than a Permitted Lien, on compete with any asset or group of assets of the Companyperson;
(v) Guarantyall partnership, joint venture, stockholders' or other similar contracts with any person;
(vi) lease or agreement under which the Company is lessee all notes, debentures, bonds and other evidence of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000HHTI Indebtedness;
(vii) lease or agreement under which the Company is lessor of or permits all contracts relating to any third party to hold or operate any property, real or personal, owned or controlled by the Companybusiness combination;
(viii) contract all contracts between or group among HHTI or any of related contracts with the same party HHTI Subsidiaries, on the one hand, and any of their stockholders or group of affiliated parties affiliates, on the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of businesshand;
(ix) assignment, license, indemnification all collective bargaining or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;similar labor contracts; and
(x) contract concerning all other contracts that involve the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, annual payment or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except potential annual payment pursuant to the Company’s standard form terms of customer agreement in such contract, by or to HHTI or any of the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term HHTI Subsidiaries of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration $25,000 or aggregate payments in excess of $150,000 annually;
100,000 that will not (xviA) contract regarding voting, transfer be fully performed on or other arrangements related prior to the Company’s Capital Stock or warrantsEffective Time, options or other rights to acquire any of Capital Stock of the Company, except pursuant (B) expire by their terms prior to the Company’s standard form of option agreement in the form delivered to Buyer;
Effective Time, or (xviiC) contract or agreement regarding any indemnification provided to or be cancelable by the CompanySurviving Entity, including any contract regarding any indemnification provided with respect to Environmental without penalty, upon not more than 30 days notice, including, without limitation, all leases, contracts for purchase and Safety Requirementssale of assets, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations advance booking contracts and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsbanquet contracts.
(b) All of the contracts, leases, agreements and instruments set forth or Each contract required to be set forth disclosed on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be 7.19 is in full force and effect without penalty and constitutes a legal, valid and binding agreement, enforceable in accordance with their its terms upon consummation and, except as disclosed on Schedule 7.19 , neither HHTI, any of the transactions contemplated herebyHHTI Subsidiaries nor, subject to (i) laws the knowledge of general application relating HHTI, any other party to bankruptcysuch contract is in violation, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in breach or default under any such contract (or in breach of nor, as of the date hereof, in receipt of any claim of default with notice or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage lapse of time or the giving of notice or both would result be in a defaultviolation, breach or event of noncompliance by the Company default under any Material Contracts such contract), the effect of which, individually or instrument to which in the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penaltyaggregate, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have result in a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a true and correct copy of each The HHTI Franchise Agreements disclosed on Schedule 7.19 constitute all of the Material Contracts which are referred franchise or similar agreements necessary to on Schedule 5.11 operate and manage the HHTI Hotels and neither HHTI nor any HHTI Subsidiary has received any notice or has any knowledge of the Disclosure Schedule, together with all amendments, waivers an event of default or other changes theretotermination or proposed termination under any such HHTI Franchise Agreement.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on in Section 2.16 or in the "Contracts Schedule" attached hereto as Schedule 5.11(a2.10(a) of or in the Disclosure "Customer Contracts Schedule" attached hereto as Schedule 2.10(d) (all written or oral such contracts or and agreements required to be set forth listed on such schedule being schedules are referred to herein as the “Material "Contracts” and each a “Material Contract”"), the Company neither CRG nor any Subsidiary is not a party to any written or oralany:
(i) bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase retirement or other deferred compensation plan or arrangement providing for deferred stock purchase, stock option, hospitalization insurance or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit similar plan or arrangementpractice, whether formal or any collective bargaining agreement or any other contract with any labor unioninformal, or severance agreements, programs, policies agreements or arrangements;
(ii) contract with any labor union or contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-timetime or consulting basis for aggregate consideration, consultingor requiring aggregate payments, contractor or other basis or relating to loans to officers, directors or Affiliates, other of more than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice$10,000 per annum;
(iii) contract under which mortgage, pledge or other lien placed on any of the Company has advanced or loaned any other Person amountsCRG Assets;
(iv) agreement or indenture relating to guarantee of any obligation for borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lienotherwise, other than a Permitted Lien, on any asset or group endorsements made for collection in the ordinary course of assets of the Companybusiness;
(v) Guarantyagreement or commitment with respect to the lending or investing of funds to or in other persons or entities;
(vi) license or royalty agreement related to the Business;
(vii) lease or agreement related to the Business under which the Company it is lessee of or holds or operates any property, real or personal, personal property owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(viiviii) lease or agreement related to the Business under which the Company it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Companyit;
(viiiix) contract or group of related contracts related to the Business with the same party for the purchase or group sale of affiliated parties products or services other than the performance Customer Contracts (as defined in Section 2.10(d) hereof);
(x) other contract related to the Business with any party continuing over a period of more than six months from the date or dates thereof, not terminable by it on thirty (30) days' or less notice without penalties;
(xi) contract which involves consideration prohibits it from freely engaging in business anywhere in the aggregate in excess world;
(xii) contract relating to the distribution of $150,000, its products as it relates to the Business; or
(xiii) other than purchase and sales orders incurred agreements related to the Business whether or not entered into in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of Except as specifically disclosed in the contracts, leases, agreements and instruments set forth Contracts Schedule or required the Customer Contracts Schedule; (i) no material contract or commitment related to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against Business has been breached in any respect by CRG or the CompanySubsidiaries, and to CRG's Knowledge, no material contract or commitment related to the Company’s knowledge, against Business has been breached in any respect by the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of thereto or canceled by the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and other party; (ii) rules of law governing specific performancesince May 31, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) 1999, no supplier of the Disclosure ScheduleBusiness has notified CRG or the Subsidiaries that it shall stop or decrease in any material respect the rate of business done with CRG or the Subsidiaries, as applicable; (iiii) each of CRG and the Company Subsidiaries has performed, in all material respects, respects performed all the obligations required to be performed by it them to the Closing Date and is are not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract material lease, contract, commitment or instrument other agreement related to the Business to which the Company it is a party; (iiiv) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company default under any Material Contracts lease, contract, instrument or instrument other agreement related to the Business to which the Company CRG or any Subsidiary is a party; (iii) the Company has no present expectation or intention of , except for any such event that would not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are ; (v) no renegotiations ofcontract or agreement has been amended or otherwise modified, attempts or requests exchanged (pursuant to renegotiate a Code Section 1035 exchange or outstanding rights otherwise), the effect of which amendment, modification or exchange would be to renegotiatereduce the commissions or revenue payable in respect of such contract or agreement; and (vi) neither CRG nor any Subsidiary is a party to any contract which is adverse to the Business's operations, any terms of any of the Material Contracts on the part of the Companyfinancial condition, operating results or business prospects.
(c) Buyer’s counsel has Purchasers have been supplied with a true and correct copy of each of the Material Contracts written contract which are is referred to on the Contract Schedule 5.11 of the Disclosure and Customer Contracts Schedule, together with all amendments, waivers or other changes thereto.
(d) Except as set forth on Schedule 2.10(d), CRG has no Knowledge of any (i) pending or threatened termination, cancellation, limitation, modification or change in any of its business relationships with any customer or group of customers related to the Business or (ii) changes or pending changes in any business relationship or other circumstance that could result in the loss of any customers related to the Business after the date hereof. Each contract, agreement or lease with customers of each of CRG and the Subsidiaries relating to the Business ("Customer Contracts") are listed in the "Customer Contracts Schedule" attached hereto as Schedule 2.10(d). Except as indicated on Schedule 2.10(d), (A) each of the Customer Contracts is valid, enforceable and in full force and effect in accordance with the terms thereof, (B) there is no existing default or event or condition which, with notice or lapse of time or both, would constitute an event of default under any Customer Contract, (C) no Customer Contract has been amended, modified, supplemented or otherwise altered orally, in writing or by course of conduct, (D) no Customer Contract requires the consent of the customer or any other party to effect a valid assignment thereof to MergerSub without causing a default or giving rise to a right of termination thereunder, and (E) to CRG's Knowledge, each Customer Contract complies with all applicable laws, rules and regulations.
Appears in 1 contract
Contracts and Commitments. (a) Except Schedule 4.15
(a) is a complete and accurate list of all of the ---------------- following Commitments (including all amendments thereto) with respect to the Business or the Subject Assets, other than any such Commitments which are Excluded Assets and other than the Customer Contracts (as expressly contemplated defined in Paragraph 4.15(c)): (i) all leases and licenses for and other agreements relating to any hardware, software, execution systems and data feeds and other data processing systems or other electronic or computer systems, including chips, firmware, hardware or software, used by this Agreement Seller and licensed from third parties, and all agreements with service bureaus and other third parties for electronic data manipulation, maintenance or as set forth storage, (collectively, the "Third Party Systems"); (ii) all Commitments, ------------------- including all other leases and licenses, and all supply agreements, purchase orders, loan agreements, security agreements, notes, guaranties, mortgages, royalty agreements, licensing agreements, Authorizations, employment agreements, covenants not to compete, confidentiality agreements, commission agreements, sales representative, distributorship or marketing agreements, insurance plans, bonus plans, and compensation plans or other employee plans, not listed on Schedule 5.11(a4.3, Schedule 4.11(b) or ------------ ---------------- Schedule 4.18, not covered by clause (i) of this Paragraph 4.15(a) and made ------------- in the Disclosure Schedule ordinary course of the Business for an amount greater than Five Thousand Dollars ($5,000) or which cannot be terminated by Seller without penalty upon not more than thirty (30) days notice; and (iii) all written Commitments not covered by clauses (i) and (ii) of this Paragraph 4.15(a), and not made in the ordinary course of the Business or otherwise material to the Business or the Subject Assets. True and correct copies or memoranda (describing each with respect to oral contracts agreements or agreements arrangements) of each of the Commitments required to be set forth listed on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”Schedule 4.15(a), the Company and ---------------- all amendments and modifications thereof, have been delivered to Purchaser. Seller is not a party to nor is Seller bound by any written other Commitment which relates to the Subject Assets or oral:
the Business, except those listed on Schedule 1.1(g) or those not required to be so listed because not covered --------------- by clauses (i) pensionthrough (iv) of the foregoing provision, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially made in the form made available to Buyer that provide ordinary course of business for “at-will” employment an amount less than $5,000 and maybe be terminated terminable by the Company Seller without penalty upon less not more than thirty (30) days’ notice;
(iii) contract under which days notice and not otherwise material to the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness Business or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsSubject Assets.
(b) All Seller and, to the knowledge of the contractsSeller and ZCO, leaseseach other party to each Commitment, agreements (i) have performed in all material respects each term, covenant, and instruments set forth or required condition of each Commitment which is to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Companyperformed by them, and to (ii) are not in any material default or violation of any such Commitments, including any material default or breach upon the Company’s knowledgelapse of time, against the other party theretogiving of notice, in accordance with their respective terms, and shall be or both). Each Commitment is in full force and effect without penalty in accordance with their terms upon consummation and constitutes the legal and binding obligation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtorsSeller, and (ii) rules to the knowledge of law governing specific performanceSeller and ZCO, injunctive relief and the other equitable remediesparties thereto. Except as set forth on Schedule 5.11(b4.15(b), no Commitment requires the consent of any other ---------------- party thereto in order for Seller to assign such Commitment to, or to enter into a sublease with respect to the property subject to such Commitment with, Purchaser hereunder.
(c) Attached hereto as Schedule 4.15(c) are true and correct copies ---------------- of all of the Disclosure Schedule, (i) standard forms of agreement and other documentation used in the Company has performed, in all material respects, all obligations required Business with respect to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) accounts as of the date hereof and as of the Company has no knowledge of Closing, including all such agreements and other documentation and any breach deviations therefrom which deviations impose any material obligation on the broker-dealer with respect thereto or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument will or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have result in any consent required to be obtained from any customer who is a Material Adverse Effectparty to an Assumed Contract which consent is different from that being obtained as part of the Regulatory Approvals (collectively, the "Customer Contracts"). There are no renegotiations ofCommitments, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any other than those in the ------------------ forms of the Material Contracts on Customer Contracts, between Seller and any customers. Assuming that the part consent of the Companycustomers who are parties to the Customer Contracts is obtained pursuant to the Customer Consents, all customer agreements are assignable.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) None of the Disclosure Schedule (all written Purchased Assets or oral contracts or agreements required to be set forth on such schedule being referred to herein as Assumed Liabilities contain any of the “Material Contracts” and each a “Material Contract”), the Company is not a party to any written or oral:
following: (i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultantscollective bargaining agreement, or any other employee benefit plan agreement that contains any severance pay liabilities or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
obligations; (ii) contract for the employment employment, consulting or engagement similar agreements, contracts or commitments that are not terminable without penalty or cost by Seller on notice of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
calendar days or less or which contain an obligation of Seller to pay and/or accrue more than $50,000 per year; (iii) contract under notes or other evidences of Indebtedness for borrowed money or the deferred purchase price of property or services, which the Company has advanced or loaned any other Person amounts;
involve a liability of more than $50,000; (iv) agreement of guaranty or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
indemnification; (v) Guaranty;
agreement, contract or commitment limiting the freedom of Seller to engage in any line of business or compete with any Person; (vi) lease agreement, contract or agreement under which the Company commitment (written or oral) with a supplier of Seller that provided more than $50,000 in goods or services to Seller in fiscal year 2001 or is lessee of reasonably expected to provide such amount or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
more in fiscal year 2002; (vii) lease agreement, contract or agreement under commitment (written or oral) with customers or other Persons which the Company involves $50,000 or more and, by its terms, is lessor of not cancelable without penalty or permits any third party to hold cost within sixty (60) calendar days or operate any property, real or personal, owned or controlled by the Company;
(viii) contract any of the foregoing, whether above or group of related contracts with below the same party or group of affiliated parties the performance of thresholds referred to therein, which involves consideration $125,000 or more in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business;aggregate.
(ixb) assignment(i) Seller is not in breach of, licensenor has Seller received in writing any claim or assertion that it has breached, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty terms or other consideration for conditions of any such software or group of related software licenses of the Purchased Contracts and there are no more than $150,000, except pursuant to obligations owed by Seller under the Company’s standard form of customer agreement Purchased Contracts; (ii) each Purchased Contract is in full force and effect in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services , there is no material breach or default by Seller or, to the CompanySeller’s Knowledge, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, and Seller has not received any notice (in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject writing or otherwise) that any party thereto wishes to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is cancel or not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a partyrenew such Purchased Contract; (iiiii) to Seller’s Knowledge, there are no event has occurred which with facts or conditions that exist, have occurred, or are anticipated which, through the passage of time or the giving of notice notice, or both both, would result in constitute a default, breach or event of noncompliance by the Company material default under any Material Contracts Purchased Contract or instrument to which would cause the Company is a party; (iii) acceleration of any obligation of any party thereto or the Company has no present expectation or intention creation of not fully performing all such obligations; an Encumbrance, and (iv) no partially-filled neither the execution, delivery and performance of this Agreement or unfilled customer purchase order the documents or sales order is subject instruments executed in connection herewith, nor consummation of the transactions contemplated hereby or thereby, will cause the forfeiture or termination of, or give rise to cancellation or any other modification by the other party thereto or is subject to any penalty, a right of set-off forfeiture or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations termination of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the CompanyPurchased Contract.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (i) Part 3.1(L)(i) of the AZNA Disclosure Letter lists the following Contracts, whether oral or written, to which AZNA is a party, which are currently in effect:
(a) Except as expressly contemplated by this Agreement any joint venture or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company is not a party to any written or oral:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementspartnership agreement;
(iib) contract except for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially agreements with customers in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeOrdinary Course of Business, any confidentiality agreement;
(iiic) contract under which any Contract relating to the Company has advanced voting of the Units or loaned any other Person amountsthe election of directors of AZNA;
(ivd) any agreement or indenture relating to the borrowing of money or placing an Encumbrance on any of the assets of AZNA;
(e) any guaranty of any obligation for borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Companyotherwise;
(vf) Guaranty;
(vi) any lease or agreement under which the Company it is lessor or lessee of or holds or operates any property, real or personal, owned by any other party, except leases for any lease of real or personal property under which involving less than $10,000 individually and $25,000 in the aggregate annual rental payments do not exceed $150,000aggregate;
(viig) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any propertyContract (including, real or personalbut not limited to, owned or controlled by the Companypurchase orders);
(viiih) contract any Contract or group of related contracts Contracts with the same party for the sale of products or group services under which the undelivered balance of affiliated parties the performance of which involves consideration in the aggregate such products or services has a sales price in excess of $150,000, other than purchase and sales orders incurred in 10,000 over the ordinary course remaining term of businessthe Contract;
(ixi) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software Contract or group of related software licenses Contracts with the same party not otherwise disclosed in Part 3.1(L)(i) of no more the AZNA Disclosure Letter (other than $150,000, except pursuant to any Contract or group of related Contracts for the Company’s standard form purchase or sale of customer agreement in the form delivered to Buyer;
(xproducts or services) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by continuing over a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term period of more than six (6) months which is from the date or dates thereof, not terminable by the Company upon less than thirty (30) it on 30 days’ or less notice without penalty and involves a consideration in excess involving more $10,000 over the remaining term of $150,000 annuallythe Contract;
(xvij) contract regarding voting, transfer any Contract which prohibits AZNA or any other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it Affiliate from freely engaging in any business business, or competing which prohibits AZNA or any Affiliate from soliciting customers or any other business, anywhere in the world; or;
(xixk) any other agreement which is material to its operations Contract for the manufacture, supply and/or distribution of the products or services of AZNA (including any distributor, sales and business prospects original equipment manufacturer contract);
(l) any franchise agreement, marketing agreement, or involves a consideration royalty agreement;
(m) any Contract or commitment for capital expenditures in excess of $150,000 annually. To 25,000;
(n) any agreement for the extent applicable, the Material Contracts identified on Schedule 5.11 sale of any capital asset;
(o) any agreement not otherwise disclosed in Part 3.1(L)(i) of the AZNA Disclosure Schedule are separately identified Letter involving material non-contingent payment obligations by type AZNA;
(p) any Contract under which the rights of agreement. The description of all Material Contracts identified on Schedule 5.11 AZNA may be adversely affected as a result of the change in control of AZNA contemplated by this Agreement;
(q) any power of attorney granted by AZNA to any Governmental Body or other Person;
(r) any agreement which provides a rate guaranty extending more than one year after the date hereof;
(s) any Contract which gives any Person any right to any intellectual property or other proprietary right of AZNA; and
(t) any agreement not otherwise disclosed in Part 3.1(L)(i) of the AZNA Disclosure Schedule clearly identify all amendmentsLetter which is either material to the business of AZNA, waivers and other modifications to such agreementstaken as a whole, or was not entered into in the Ordinary Course of Business.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company AZNA has performed, performed in all material respects, respects all obligations required to be performed by it in connection with the Contracts required to be disclosed in the AZNA Disclosure Letter (whether or not under the caption referencing this Section 3.1(L)) and is are not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach material respect under any Material such Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company . AZNA has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject material obligation pursuant to any penaltysuch Contract or commitment required to be disclosed in the AZNA Disclosure Letter. To the Knowledge of AZNA, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has there is no knowledge of any current breach or anticipated breach by the any other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companysuch Contract.
(ciii) Buyer’s counsel Prior to the date of this Agreement, Finisar has been supplied with a true and correct copy of each written Contract, and a written description of the Material Contracts which are each oral Contract, referred to on Schedule 5.11 of in the AZNA Disclosure ScheduleLetter (whether or not under the caption referencing this Section 3.1 (L)), together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Purchase Agreement (Finisar Corp)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(ain Section 3.18(a) of the Beeville Disclosure Schedule Schedules (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Beeville Contracts” and each a “Material Contract”), the Company neither Beeville nor any of its Subsidiaries is not a party to or bound by any of the following (whether written or oral:, express or implied):
(i) pensionemployment, profit sharingservices, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)independent contractor, employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise)consulting, to employeeschange-in-control, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor unionretention, or severance agreements, programs, policies contracts or similar arrangements;
(ii) contract for the employment or engagement collective bargaining agreements, memorandums of any officerunderstanding, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty contracts with any Union (30) days’ noticeas defined herein);
(iii) contract under which the Company has advanced bonus, stock option, restricted stock, stock appreciation, deferred compensation arrangement, profit-sharing plan, pension plan, retirement plan, welfare plan or loaned any other Person amountsemployee benefit agreement or arrangement;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) material lease or agreement under which the Company is lessee of or holds or operates license with respect to any property, real or personal, owned by any other partywhether as landlord, except tenant, licensor or licensee;
(v) contract or commitment for any lease capital expenditures in excess of real $50,000 in the aggregate;
(vi) material contract or personal property under which commitment for the aggregate annual rental payments do purchase of materials or supplies or for the performance of services over a period of more than sixty (60) days after the date of this Agreement and not exceed $150,000terminable upon notice of sixty (60) days or less;
(vii) lease contract or agreement under which the Company is lessor of option to purchase or permits sell any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, personal property other than any contract for the purchase and sales orders incurred of personal property in the ordinary course of business;
(ixviii) assignmentcontract, license, indemnification agreement or agreement letter with respect to the management or operations of Beeville or Beeville Bank imposed by any intangible property Governmental Body having supervisory jurisdiction over Beeville or Beeville Bank;
(including any Intellectual Property Rightsix) granted note, debenture, agreement, contract or made indenture related to the Company, borrowing by Beeville or granted or made by the Company to third parties, except licenses granted by a third party to the Company any of commercially available, unmodified, “off the shelf” software used solely for the internal use its Subsidiaries of the Company for an aggregate fee, royalty or money other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement those entered into in the form delivered to Buyerordinary course of business;
(x) contract concerning guaranty of any obligation for the provision borrowing of co-location money, excluding endorsements made for collection, repurchase or resell agreements, letters of credit and related services to guaranties made in the Company, which services are used to fulfill obligations to provide software and data hosting services to customersordinary course of business;
(xi) contract pursuant agreement with or extension of credit to which any executive officer or director of Beeville or any of its Subsidiaries or holder of ten percent (i10%) Company Intellectual Property Rights owned by a third party are actually embedded in Company Softwareor more of the issued and outstanding Beeville Stock, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Softwareany affiliate of such person;
(xii) warranty agreement with respect any executive officer or director of Beeville or any of its Subsidiaries or holder of ten percent (10%) or more of the issued and outstanding Beeville Stock or any affiliate of such person, relating to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyerbank owned life insurance (“BOLI”);
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights)lease of real property;
(xiv) salesany agreement containing covenants that limit the ability of Beeville or any of its Subsidiaries to compete in any line of business or with any Person, distributionor that involve any restriction on the geographic area in which, manufacturingor method by which, supply Beeville (including any successor thereof) or franchise agreementany of its Subsidiaries (including any successor thereof) may carry on its business (other than as may be required by law or any Governmental Body);
(xv) any data processing or other electronic banking services agreement with a term or contract which may not be terminated without payment or penalty upon notice of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annuallydays or less;
(xvi) contract regarding voting, transfer any agreement pursuant to which Beeville or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant its Subsidiaries may become obligated to the Company’s standard form of option agreement invest in the form delivered or contribute capital to Buyerany Person;
(xvii) contract or any agreement regarding any indemnification provided to or by between Beeville Bank, on the Companyone hand, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirementsa Person listed on Section 3.1(e) of the Beeville Disclosure Schedules, except pursuant to on the Company’s standard form of customer agreement in other hand (the form delivered to Buyer;“Affiliate Agreements”); or
(xviii) contract contracts, other than the foregoing, with payments aggregating $50,000 or agreement prohibiting it from freely engaging in any business or competing anywhere more not made in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess ordinary course of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsbusiness.
(b) All of Each Beeville Contract is legal, valid and binding on Beeville or its Subsidiaries, as the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Companycase may be, and to the Company’s knowledgeknowledge of Beeville, against the other party parties thereto, enforceable by Beeville or its Subsidiaries, as the case may be, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their its terms upon consummation of the transactions contemplated hereby, (subject to (i) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application relating to bankruptcy, insolvency creditors’ rights generally and the relief general equitable principles). Each of debtors, Beeville and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company its Subsidiaries has performed, performed in all material respects, respects all obligations required to be performed by it to date under each Beeville Contract and is not in default under there are no existing material defaults by Beeville or in breach of norits Subsidiary, as the case may be, or, to the knowledge of Beeville, the date hereofother party thereunder and, in receipt to the knowledge of Beeville, there are no allegations or assertions of such by any claim of default or breach party under any Material such Beeville Contract or instrument to which the Company is a party; (ii) no event has occurred which any events that with the passage notice, lapse of time or the giving happening or occurrence of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject event would be reasonably likely to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are partiesconstitute a default thereunder. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a A true and correct complete copy of each of the Material Contracts which are referred Beeville Contract has been delivered or made available to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes theretoSpirit.
Appears in 1 contract
Sources: Merger Agreement (Spirit of Texas Bancshares, Inc.)
Contracts and Commitments. (a) Except as expressly contemplated Schedule 4.10 lists by this Agreement or as set forth on Schedule 5.11(a) subsection each of the Disclosure Schedule (all contracts and agreements of the types described below, whether written or oral contracts oral, to which Seller is a party or agreements required to be set forth on such schedule being referred to herein is otherwise bound as of the date hereof (the “Material Contracts” and each a “Material Contract”), the Company is not a party to any written or oral:):
(i) pensionall Client engagements and similar arrangements pursuant to which Seller has agreed to provide services, profit sharing, stock option (other than engagements that have been fully performed, all amounts have been fully paid by the Company Options granted under Client, and no obligations remain to be performed by Seller or the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsClient;
(ii) contract for contracts prohibiting competition or the employment disclosure of trade secrets or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeconfidential information;
(iii) contract under which agreements or indentures relating to Indebtedness or placing a Lien on any of the Company has advanced Purchased Assets or loaned any other Person amountsletter of credit arrangements;
(iv) agreement agreements requiring Seller to make any royalty or indenture relating commission payments (other than sales commissions paid to borrowed money employees according to Seller’s standard commissions plan) upon or other Indebtedness for the manufacture, sale or distribution of any products or services or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on use of any asset or group of assets of the CompanyIntellectual Property Rights;
(v) Guarantynondisclosure or confidentiality agreements pursuant to which Seller is obligated to maintain the confidentiality of, or not to disclose, designated information;
(vi) lease leases or agreement agreements under which the Company Seller is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000leases;
(vii) lease broker, distributor, vendor or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Companymaintenance agreements;
(viii) contract other contracts or group of related contracts with the same party continuing over a period of more than six months from the date or group dates thereof, not terminable by Seller upon 30 days’ or less notice without penalty;
(ix) consulting, maintenance or any other similar agreements, contracts or commitments (including any employee leasing or outsourcing arrangement);
(x) agreements under which independent contractors or subcontractors are retained to provide services to Seller’s Clients on behalf of affiliated parties Seller;
(xi) contracts which prohibit Seller or, after the performance Closing, Buyer or any of which involves consideration its Affiliates, from freely engaging in business anywhere in the aggregate world;
(xii) contracts with any officer, director, employee, partner, or Affiliate of Seller (or any individual related by marriage or adoption to any such individual or any entity in excess which any such Person owns any beneficial interest);
(xiii) agreements relating to ownership of $150,000or investments in any business or enterprise, including investments in joint ventures and minority equity investments;
(xiv) powers of attorney executed by or on behalf of Seller pursuant to which Seller has granted another Person authority to act in Seller’s name or on Seller’s behalf;
(xv) agreements which grant a license or sublicense to Intellectual Property Rights, other than purchase non-exclusive licenses for commercially available third-party software granted to Seller and sales orders incurred requiring annual payments of less than $10,000;
(xvi) agreements which restrict Seller in its right to use or register any Intellectual Property Rights or permit any other Person to use, enforce or register any Intellectual Property Rights owned by Seller, including license agreements, co-existence agreements, and covenants not to ▇▇▇; or
(xvii) other agreements material to the Business not entered into in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All Seller has made available to Buyer a true and correct copy of the contractsall written Material Contracts (and a true and correct written description of any oral Material Contracts), leasestogether with all amendments, agreements and instruments set forth exhibits, attachments, waivers or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are other changes thereto. Each written Material Contract is legal, valid, binding and enforceable by and against the Company, and to the Company’s knowledge, against the other party thereto, Seller in accordance with their respective terms, its terms and shall be is in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated herebyeffect, subject to (i) laws of general application relating to except as enforceability may be limited by applicable bankruptcy, insolvency and similar laws affecting the relief enforcement of debtorscreditors’ rights generally, and (ii) rules by general principles of law governing specific performance, injunctive relief and other equitable remediesequity. Except as set forth on Schedule 5.11(b) 4.10, neither Seller nor, to the Knowledge of the Disclosure ScheduleSeller, (i) the Company has performedany other party, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of or default or breach under any Material Contract Contract, and no conditions or instrument to which the Company is a party; (ii) no event has occurred which with the passage events exist, such that, after notice or lapse of time or the giving of notice or both both, would result in constitute a default, breach or event of noncompliance by the Company default under any a written Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts Contract on the part of Seller or, to the Company.
(c) Buyer’s counsel has been supplied with a true and correct copy Knowledge of each Seller, on the part of any other parties to the Material Contracts Contracts, except for any breaches, defaults, terminations, modifications, accelerations, conditions or events which are referred have been cured or waived or which would not be material to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes theretoBusiness.
Appears in 1 contract
Sources: Asset Purchase Agreement (Heidrick & Struggles International Inc)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on in Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)4.11 hereto, the Company Seller is not a party to any or bound by, whether written or oral:
, any: (i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, whether formal or severance agreements, programs, policies or arrangements;
informal; (ii) contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
any severance agreements; (iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any asset or group of assets of the Company;
Purchased Assets; (iv) license or royalty agreements; (v) Guaranty;
lease or agreement under which Seller is lessee of, or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000; (vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company Seller is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
it for which annual rental exceeds $50,000; (viiivii) contract or group of related contracts with the same party for the purchase or group sale of affiliated parties raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of which more than six months or involves consideration in the aggregate a sum in excess of $150,00050,000 or which may not be terminable with less than six months' notice; (viii) contract relating to the distribution, other marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than purchase and sales orders incurred in the ordinary course of business;
$50,000; (ix) assignmentfranchise agreements, license(x) agreements, indemnification contracts or agreement with respect understandings pursuant to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company which Seller subcontracts work to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
; (xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
or (xixxii) any other agreement which is Seller deems material to its operations and business prospects the Business taken as a whole whether or involves a consideration not entered into in excess the ordinary course of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsbusiness.
(b) All Except as disclosed in Schedule 4.11, (i) all of the contractsAssumed Contracts are in full force and effect, leases, agreements and instruments set forth have not been amended or required to be set forth on Schedule 5.11(b) modified as of the Disclosure Schedule Closing, and are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation (ii) to the knowledge of Seller, no Assumed Contract has been breached or canceled by the transactions contemplated herebyother party since December 31, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors1995, and (iiiii) rules of law governing specific performanceSeller has, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) to its knowledge, performed all of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it Seller in connection with the Assumed Contracts and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract such contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companycommitment.
(c) Buyer’s counsel Seller has been supplied provided Buyer with a true and correct copy of each of the Material Contracts which are all Assumed Contracts, and has made available to Buyer those written contracts referred to on Schedule 5.11 of the Disclosure Schedule4.11 which are not Assumed Contracts, in each case together with all amendments, waivers or other changes thereto. To Seller's knowledge, Schedule 4.11 contains an accurate and complete description of all material terms of all oral contracts referred to therein.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of 5.11 attached hereto, and other than ------------- the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)Contracts described in Section 5.21, the no Company is not a party to any written to, or oralbound by, any:
(i) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, retirement or any other employee benefit form of deferred compensation plan or arrangementany stock purchase, stock option, hospitalization insurance or any collective bargaining agreement similar plan or any other contract with any labor union, or severance agreements, programs, policies or arrangementspractice;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any asset of its assets;
(iv) agreements with respect to the lending or group investing of assets of the Companyfunds;
(v) Guarantymaterial license or royalty agreements;
(vi) guaranty of any obligation, other than endorsements made for collection;
(vii) material lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Companyit;
(viii) contract or group of related contracts with the same party continuing over a period of more than six months from the date or group of affiliated parties the performance of which involves consideration in the aggregate in excess of dates thereof, not terminable by it on 30 days or less notice without penalties or involving more than $150,000, other than purchase and sales orders incurred in the ordinary course of business10,000;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting prohibits it from freely engaging in any business or competing anywhere in the world; or
(xixx) any other agreement which is material to its operations and business prospects it whether or involves a consideration not entered into in excess the Ordinary Course of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsBusiness.
(b) All Except as disclosed on Schedule 5.11 or addressed in Section 5.21 and ------------- except to the extent that any of the contractsfollowing could not reasonably be expected to have a Material Adverse Effect, leases(i) no contract or commitment required to be disclosed on Schedule 5.11 has been breached or canceled by the other party, agreements and instruments set forth or ------------- Old Mutual has no Knowledge of any anticipated breach by any other party to any contract required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid5.11, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performanceto Old Mutual's ------------- Knowledge, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(bno supplier has indicated in writing to any Company that it desires to renegotiate its contract or current arrangement with such Company, (iii) each of the Disclosure Schedule, (i) Companies has performed all the Company has performed, in all material respects, all obligations required to be performed by it in connection with the contracts or commitments required to be disclosed on Schedule 5.11 and is not in default under or in breach of norany contract or ------------- commitment required to be disclosed on Schedule 5.11, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) and no event has occurred ------------- which with the passage of time or the giving of notice or both would result in such a defaultdefault or breach thereunder, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; and (iv) no partially-filled or unfilled customer purchase order or sales order each agreement required to be set forth on Schedule 5.11 is subject to cancellation or any other modification by legal, valid, binding, enforceable and in full force ------------- and effect and will continue as such following the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as consummation of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companytransactions contemplated hereby.
(c) Buyer’s counsel has been supplied The Companies have provided the Purchaser with a true and correct copy of each of the Material Contracts all written contracts which are referred required to be disclosed on Schedule 5.11 of the Disclosure Schedule5.11, in ------------- each case together with all material amendments, waivers or other changes thereto.
(d) Neither ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ nor any other party, other than Sellers, Parent, the Companies, ▇▇▇▇▇▇ and ▇▇▇▇▇▇, has any presently existing or contingent right, title or interest in the Revenue Sharing Agreements.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) 3.09(a), and except for agreements entered into by any Group Company after the date hereof in accordance with Section 5.01, no Group Company is party to or otherwise bound by, and none of the Disclosure Schedule (all written properties or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the assets of any Group Company is not a party to any written or oralare bound by:
(i) pensionany Contract or indenture relating to the borrowing of money or to mortgaging, profit sharing, stock option pledging or otherwise placing a Lien on any material portion of the assets of the Group Companies (other than the Company Options granted under the Company Stock Plan on standard forms delivered to BuyerPermitted Liens), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for any Contract relating to the employment voting of, and any other rights or engagement obligations of a holder of, Company Units or any equity interests of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, Subsidiary of the Company (other than the offer letters substantially organizational documents of the Group Companies);
(iii) any guaranty of any obligation for borrowed money or other material guaranty;
(iv) any Contract that relates to any interest rate or foreign exchange rate swap or other hedging arrangements (including swap breakage or associated fees due upon termination of such swap or hedging arrangements);
(v) any lease, rental, occupancy agreement or Contract under which it is lessee or otherwise holds a leasehold interest, or holds or operates any property (whether real or personal property) owned by any other party, in each case, for which the form made available to Buyer annual rental exceeds $2,000,000 (excluding the Leases);
(vi) any Contract (excluding purchase or sale orders), for the purchase of products or services of the other party thereto that provide provides for “at-will” employment annual payments by a Group Company in excess of $2,000,000 during the trailing twelve (12) month period ending on the date of the Latest Balance Sheet and maybe cannot be terminated cancelled by the a Group Company upon less without penalty or without more than thirty sixty (3060) days’ notice;
(iiivii) contract under which any Contract (excluding purchase or sale orders) for the purchase of products or services of a Group Company has advanced or loaned any other Person amounts;
that provides for annual payments to a Group Company in excess of $2,000,000 during the trailing twelve (iv12) agreement or indenture relating to borrowed money or other Indebtedness or month period ending on the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets date of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the CompanyLatest Balance Sheet;
(viii) contract any Contract that includes any in-license of and the use of any third party Intellectual Property Rights owned or group controlled by such third party material to the conduct of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, Company’s business (other than purchase and sales orders incurred in the ordinary course of businesscommercially available software or software service);
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including Contract that includes any out-license of any Company Intellectual Property Rights) granted or made Rights that are material to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company conduct of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement business (other than non-exclusive licenses granted in the form delivered Ordinary Course of Business) to Buyerany third party;
(x) contract concerning any Contract that (A) provides for the provision payment to or by any Group Company of co-location and related royalties, milestones or other similar monetary consideration based on the commercialization of products, services or other technology, or (B) imposes any express requirement or obligation on any Group Company to the Companymanufacture, which services are used deliver, supply, or commercialize any such product, service or technology to fulfill obligations a party to provide software and data hosting services to customerssuch Contract on an exclusive basis;
(xi) contract pursuant any Contract that (A) contains a covenant or provision prohibiting or restricting, or purporting to which prohibit or restrict any Group Company from entering into, engaging in or competing in any line of business or with any Person or conducting business or activities in any territory (i) including granting exclusive rights or rights of first refusal to license, market, sell or deliver any of the products or services offered by a Group Company or any related Intellectual Property Rights owned by a third party are actually embedded Rights), in each case, other than any donor egg bank contributing agreement or donor egg bank network participating agreement entered into in the Ordinary Course of Business, (B) prohibiting any Group Company Software, from acquiring any product or other asset or services from any other Person or (iiC) prohibiting any Group Company from developing or distributing any Intellectual Property Rights owned by a third party for development tools are used to develop Company SoftwareRights;
(xii) warranty agreement with respect to its services rendered any Contract containing any “most-favored nation” provision or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyerminimum purchase requirements;
(xiii) any Contract that is a partnership, joint venture or similar agreement under which it has granted involving a share of profits, losses, costs, or liabilities with any Person any registration rights (including demand or piggyback registration rights)other Person;
(xiv) sales, distribution, manufacturing, supply or franchise agreementany Contract with any Governmental Entity;
(xv) agreement any Contract entered into since August 6, 2018 that relates to the acquisition or disposition of any business or the stock of any other Person (whether by merger, sale of stock, sale of assets or otherwise) by any member of the Group Companies with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration purchase price in excess of $150,000 annually5,000,000;
(xvi) contract regarding voting, transfer or other arrangements related to any Contract providing for capital expenditures after the Company’s Capital Stock or warrants, options or other rights to acquire any date of Capital Stock this Agreement in an amount in excess of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer$500,000 individually;
(xvii) contract any collective bargaining agreement or agreement regarding any indemnification provided to other Contract with a labor union or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyerorganization;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere written warranty extended by any member of the Group Companies other than in the world; orOrdinary Course of Business;
(xix) any other agreement Contract involving the settlement of any Action or threatened Action which is material to its operations and business prospects or involves a consideration provides payments after the date of this Agreement in excess of $150,000 annually. To the extent applicable250,000 individually; or
(xx) any Contract for employment or with any independent contractor, the Material Contracts identified on Schedule 5.11 consultant or other service provider who is a natural Person, in each case, (A) providing for an annual base salary or pay in excess of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments$200,000 or (B) providing for change in control, waivers and other modifications to such agreementstransaction, retention, severance or similar payments.
(b) All The Parent either has been supplied with, or has been given access to, a true and correct copy of all written Contracts, including all amendments, modifications and supplements thereto, that are referred to on Schedule 3.09(a) (collectively, the contracts, leases, agreements and instruments “Material Contracts”).
(c) Except as set forth or required to be set forth on in Schedule 5.11(b3.09(c), each Material Contract (i) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be is in full force and effect without penalty in accordance with their terms upon consummation and constitutes the legal, valid and binding obligation of the transactions contemplated herebymember of the Group Companies party thereto and, subject to (i) laws the knowledge of general application relating to bankruptcythe Company, insolvency and the relief of debtors, each other party thereto and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) is enforceable against such member of the Disclosure ScheduleGroup Companies and, (i) to the knowledge of the Company, each other party thereto in accordance with its terms in each case subject to the Enforceability Exceptions. No Group Company has performedhas, in all any material respectsrespect, all obligations required to be performed by it and is not in violated or breached, or committed any default under or in breach of norunder, as of the date hereof, in receipt of any claim of default or breach under any Material Contract and, to the knowledge of the Company, no other Person party thereto has materially violated or instrument to which the Company is a party; (ii) no breached, or committed any material default under, any Material Contract. No event has occurred which and is continuing through any Group Company’s actions or inactions that, with the passage lapse of time or the giving of notice or both both, would result in a default, material violation or breach or event of noncompliance by any of the Company under provisions of any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are partiesContract. The Company is not a No party to any Material Contracts Contract has given any written notice of, and to the performance knowledge of which could reasonably be expected the Company, there has been no written threat of, termination or cancellation of any Material Contract. No member of the Group Companies has received written notice of, and to the knowledge of the Company, there has been no written threat of, any significant dispute with respect to any Material Contract, in each case, that would have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of material and adverse impact on any of the Material Contracts on the part businesses of the CompanyGroup Companies.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Cooper Companies, Inc.)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(adisclosed in SCHEDULE 3.13(A) of the Company Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)Schedules, the Company is not a party or bound to any written or oral:(collectively, the "MATERIAL CONTRACTS"):
(i) collective bargaining agreement or contract with any labor union;
(ii) bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)retirement, employee stock purchase or other plan or arrangement providing for form of deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsplan;
(iiiii) hospitalization insurance or similar plan or practice, whether formal or informal;
(iv) contract for the employment or engagement of any officer, individual employee employee, or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating relative to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide severance pay for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeany such person;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(ivv) agreement or indenture relating to borrowed the borrowing of money in excess of $10,000 or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, lien on any asset or group of the assets of the Company;
(v) Guaranty;
(vi) lease guaranty of any obligation for borrowed money or agreement under which the Company is lessee of or holds or operates any propertyotherwise, real or personal, owned by any other party, except than endorsements made for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000collection;
(vii) lease or agreement under which the Company it is lessor of of, or permits any third party to hold or operate operate, any property, real or personal, owned or controlled by the Companyfor an annual rental in excess of $10,000;
(viii) contract or group of related contracts with the same party for the purchase of products or group services, under which the undelivered balance of affiliated parties the performance of which involves consideration in the aggregate such products and services has a purchase price in excess of $150,00010,000;
(ix) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $10,000;
(x) other contract or group of related contracts with the same party continuing over a period of more than six months from the date or dates thereof, either not terminable by it on 30 days' or less notice without penalty or involving more than $10,000;
(xi) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xii) contract relating to the distribution of the Company's products;
(xiii) franchise agreement;
(xiv) contract, agreement or understanding with any shareholder who beneficially owns five percent (5%) or more of the Company Common Stock or with any officer, director or employee (other than purchase and sales orders incurred for employment on customary terms);
(xv) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the proprietary rights as disclosed on SCHEDULE 3.14 of the Company Disclosure Schedules; or
(xvi) other agreement material to the Company's business or not entered into in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth Except as specifically disclosed on Schedule 5.11(bSCHEDULE 3.13(B) of the Company Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure ScheduleSchedules, (i) no contract or commitment required to be disclosed under such caption has been breached or canceled by the other party; (ii) since the date of the balance sheet included in the Company's Interim Financial Statements, no customer or supplier has indicated that it will stop or decrease the rate of business done with the Company, except for changes in the ordinary course of the Company's businesses; (iii) the Company has performed, in all material respects, performed all obligations required to be performed by it them in connection with the contracts or commitments required to be disclosed under such caption and is are not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract contract or instrument commitment required to which the Company is a partybe disclosed under such caption; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iiiiv) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject obligation pursuant to any penalty, right of set-off contract or other charge by the other party thereto for late performance commitment or deliverycommitment set forth under such caption; and (v) as of the date hereof the Company has no any knowledge of any breach or anticipated breach by the any other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts contract or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companycommitment set forth under such caption.
(c) Buyer’s counsel Prior to the date of this Agreement, Parent has been supplied with a true and correct copy of each written contract or commitment, and a written description of each oral contract or commitment, disclosed on SCHEDULE 3.13 of the Material Contracts which are referred to on Schedule 5.11 of the Company Disclosure ScheduleSchedules, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Merger Agreement (Vitrix Inc /Nv/)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(afor contracts, commitments, plans, agreements and licenses described in SCHEDULE 2.16(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)hereto, the Company Seller is not a party to or subject to any contract, agreement or commitment (written or oral:):
(i) pensionfor the purchase of any commodity, profit sharingmaterial, stock option equipment or asset (other except for purchase orders in the ordinary course of business or contracts involving payments of less than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer$1,000 each), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract creating any obligations of Seller after the Base Balance Sheet Date which call for payments of more than $5,000 during any month for agreements without a fixed term or more than $20,000 over the employment or engagement term of any officer, individual employee or other Person on the agreement for agreements with a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticefixed term;
(iii) contract under which providing for the Company has advanced purchase of all or loaned any other Person amountssubstantially all of its requirements of a particular product from a supplier;
(iv) agreement which by its terms does not terminate or indenture relating to borrowed money is not terminable without premium or other Indebtedness penalty by Seller (or the mortgaging, pledging its successor or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Companyassign) upon ninety (90) days notice;
(v) Guaranty;
(vi) lease for the sale or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do its products not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred made in the ordinary course of business;
(vi) with any sales agent or distributor of products of Seller;
(vii) containing covenants limiting the freedom of Seller to compete in any line of business or with any person or entity;
(viii) for a license or franchise (as licensor or licensee or franchisor or franchisee);
(ix) assignment, license, indemnification involving any arrangement or agreement obligation with respect to any intangible property (including any Intellectual Property Rights) granted the return of inventory or made merchandise other than on account of a defect in condition, or failure to conform to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyerapplicable contract;
(x) contract concerning with the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customersUnited States government;
(xi) contract pursuant which contains covenants as to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Softwarenoncompetition, nondisclosure, nonsolicitation or (ii) Intellectual Property Rights owned by a third party confidentiality restricting or for development tools are used to develop Company Software;the benefit of Seller; or
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and the assets or business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsSeller.
(b) All Each of the contracts, leasescommitments, plans, agreements and instruments set forth or required licenses to be set forth which Seller is a party, including those listed on Schedule 5.11(bSCHEDULE 2.16(a) of the Disclosure Schedule are (each a "Contract") is valid, binding and enforceable against the CompanySeller and, and to the Company’s knowledgeknowledge of Seller, against the other party parties thereto, in accordance with their respective terms, and shall be ; Seller is in full force compliance with all terms and effect without penalty in accordance with their terms upon consummation conditions of the transactions contemplated herebyeach Contract; and, subject to (i) laws Seller has neither given nor received notice of general application relating to bankruptcy, insolvency and the relief any alleged violation of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in or default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the CompanyContract.
(c) Buyer’s counsel Since January 1, 1997, Seller has been supplied not experienced any termination, cancellation, limitation or modification or change in any business relationship with any material supplier or customer, nor has Seller received notice or otherwise have knowledge that any customer or supplier intends to cease, or materially reduce or change the terms of, doing business with Seller or to terminate any agreement with Seller where such action has had or would have a true material adverse effect on the business of Seller. SCHEDULE 2.16(d) lists every material customer or supplier of Seller and correct copy the amount of each business with that customer. For purposes hereof, a supplier is material if during fiscal 1995, 1996 and 1997, it accounted for more than five percent (5%) by value of the Material Contracts which are referred orders of Seller for purchase of all its raw materials and other products essential to on Schedule 5.11 its manufacturing processes for such year. A customer is material if it accounted for more than three percent (3%) by value of the Disclosure Scheduleorders of Seller in either fiscal 1995, together with 1996 or 1997.
(d) The total backlog of Seller (including all amendmentsaccepted and unfulfilled sales orders) is not materially less than the backlog amount set forth on SCHEDULE 2.16(e), waivers and the aggregate of all outstanding purchase orders issued by Seller (including all contracts or commitments for the purchase by Seller of materials or other changes theretosupplies) is not materially more than the purchase order amount set forth on such SCHEDULE 2.16(e). All such sales and purchase commitments were made in the ordinary course of business. All open customer orders are listed on SCHEDULE 2.16(e).
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly specifically contemplated by ------------------------- this Agreement or and except as set forth on the Contracts Schedule 5.11(a) attached ------------------ hereto, neither of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company Companies nor any of their Subsidiaries is not a party to any or bound by, whether written or oral, any:
(i) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, retirement or any other employee benefit form of deferred compensation plan or arrangementany stock purchase, stock option, hospitalization insurance or any collective bargaining agreement similar plan or any other contract with any labor unionpractice, whether formal or severance agreementsinformal, programsin all such cases, policies or arrangements;except as otherwise set forth on the Benefits -------- Plan Schedule; -------------
(ii) any contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeany severance agreements;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any asset of its assets;
(iv) agreements with respect to the lending or group investing of assets of the Companyfunds;
(v) Guarantylicense or royalty agreements;
(vi) lease or agreement under which the Company is lessee guaranty of or holds or operates any propertyobligation, real or personal, owned by any other party, except than endorsements made for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000collection;
(vii) lease or agreement under which the Company it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $100,000 annually;
(viii) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it (other than (x) as set forth on the CompanyReal Property ------------- Schedule, (y) leases of equipment in the Ordinary Course of Business and -------- (z) leases with aggregate annual rent payments of less than $100,000);
(viiiix) contract or group of related contracts with (other than purchase orders)with the same party continuing over a period of more than six months from the date or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000dates thereof, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification not terminable by it on 30 days or agreement with respect to any intangible property (including any Intellectual Property Rights) granted less notice without penalties or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no involving more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer100,000;
(x) contract concerning which prohibits it from freely engaging in business anywhere in the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customersworld;
(xi) contract pursuant to which settlement conciliation or similar agreement imposing any prospective obligations (ifinancial or otherwise) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, upon the Companies or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;any of their Subsidiaries; or
(xii) warranty any agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement purchase order with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements"Big 3" automaker.
(b) All Except as disclosed on the Contracts Schedule, (i) no contract ------------------ or commitment required to be disclosed on the Contracts Schedule has, to the ------------------ Knowledge of the contractsSellers and the Companies, leasesbeen breached or canceled by the other party and the Companies, agreements their Subsidiaries and instruments set forth or the Sellers have no Knowledge of any anticipated breach by any other party to any contract required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are validContracts Schedule, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performanceno customer or supplier has ------------------ indicated in writing or, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) to the Knowledge of the Disclosure ScheduleCompanies and the Sellers, orally to the Companies, any of their Subsidiaries or any Seller that it shall stop or materially decrease the rate of business done with the Companies or any of their Subsidiaries or that it desires to renegotiate its contract or current arrangement with the Companies or any of their Subsidiaries, (iiii) the Company Companies and each of their Subsidiaries has performed, in performed all material respects, all the obligations required to be performed by it in connection with the contracts or commitments required to be disclosed on the Contracts Schedule and is not in default under or in breach of nor------------------ any contract or commitment required to be disclosed on the Contracts Schedule, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) ------------------ and no event has occurred which with the passage of time or the giving of notice or both would result in a default, default or breach or event thereunder and (iv) neither the Companies nor any of noncompliance by the Company under their Subsidiaries has any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject obligation pursuant to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties contract required to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts set forth on the part of the Company.Contracts Schedule. ------------------
(c) Buyer’s counsel has been supplied with a The Sellers have made available to the Purchasers true and correct copy copies of each of the Material Contracts all written contracts which are referred required to be disclosed on Schedule 5.11 of the Disclosure Contracts Schedule, in each case together with all amendments, waivers or ------------------ other changes theretothereto (all of which are disclosed on the Contracts Schedule). ------------------ The Contracts Schedule contains an accurate and complete description of all ------------------ material terms of all oral contracts required to be set forth thereon.
Appears in 1 contract
Sources: Purchase Agreement (National Equipment Services Inc)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on in Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)4.13, the Company Texas Mortgage is not a party to any written or oral:
any: (i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any officer, individual employee employee, or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating relative to loans to officers, directors severance pay or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide change-in-control benefits for “at-will” employment and maybe be terminated by the Company upon less than thirty any such person; (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(ivii) agreement or indenture relating to borrowed the borrowing of money in excess of $25,000 or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lienlien on any assets of Texas Mortgage which has a fair market value in excess of $25,000 in the aggregate; (iii) guaranty of any obligation for borrowed money or otherwise, other than a Permitted Lienendorsements made for collection, on or any asset or group of assets of the Company;
indemnity agreement; (v) Guaranty;
(viiv) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company it is lessor of of, or permits any third party to hold or operate operate, any property, real or personal, owned or controlled by the Company;
; (viiiv) contract or group of related contracts with the same party for the purchase or group sale of affiliated parties products, services, mortgages or deeds of trust under which the performance undelivered balance of which involves consideration in the aggregate such 16 items has a purchase price in excess of $150,000, 25,000; (vi) any other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software contract or group of related software licenses of no more than $150,000, except pursuant to contracts with the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by same party continuing over a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term period of more than six (6) months which is from the date or dates thereof or involving more than $25,000; or (vii) other agreement material to Texas Mortgage's business not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement entered into in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form ordinary course of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsbusiness.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and Texas Mortgage has attached to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject Schedule 4.13 or otherwise furnished to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with Monterey a true and correct copy of each written contract or commitment, and a written description of the Material Contracts which are each oral contract or commitment, referred to on Schedule 5.11 of the Disclosure Schedulein this Section 4.13, together with all amendments, waivers or other changes thereto.
(c) Except as specifically disclosed in Schedule 4.13: (i) since the date of the March 1997 Balance Sheet, no significant customer or supplier has indicated that it will stop or decrease the rate of business done with Texas Mortgage, except for changes in the ordinary course of Texas Mortgage's Business; (ii) Texas Mortgage has performed all material obligations required to be performed by it in connection with the contracts or commitments described herein and Texas Mortgage has not been advised of or received any claim of default under any such contract or commitment; (iii) Texas Mortgage has no present expectation or intention of not fully performing any obligation pursuant to any contract or commitment; and (iv) Texas Mortgage has no Knowledge of any breach or anticipated breach by any other party to any contract or commitment.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on disclosed in Schedule 5.11(a3.13(a) of the Company Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)Schedules, the Company is not a party or bound to any written of the following contracts or oral:agreements (collectively, the "Material Contracts"):
(i) collective bargaining agreement or contract with any labor union;
(ii) bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)retirement, employee stock purchase or other plan or arrangement providing for form of deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsplan;
(iiiii) hospitalization insurance or similar plan or practice, whether formal or informal;
(iv) contract for the employment or engagement of any officer, individual employee employee, or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating relative to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide severance pay for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeany such person;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(ivv) agreement or indenture relating to borrowed the borrowing of money in excess of $10,000 or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, lien on any asset or group of the assets of the Company;
(v) Guaranty;
(vi) lease guaranty of any obligation for borrowed money or agreement under which the Company is lessee of or holds or operates any propertyotherwise, real or personal, owned by any other party, except than endorsements made for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000collection;
(vii) lease or agreement under which the Company it is lessor of of, or permits any third party to hold or operate operate, any property, real or personal, owned or controlled by the Companyfor an annual rental in excess of $10,000;
(viii) contract or group of related contracts with the same party for the purchase of products or group services, under which the undelivered balance of affiliated parties the performance of which involves consideration in the aggregate such products and services has a purchase price in excess of $150,00010,000;
(ix) contract or group of related contracts with the same party for the sale of products or services under which the undelivered balance of such products or services has a sales price in excess of $10,000;
(x) other contract or group of related contracts with the same party continuing over a period of more than six months from the date or dates thereof, either not terminable by it on 30 days' or less notice without penalty or involving more than $10,000;
(xi) contract which prohibits the Company from freely engaging in business anywhere in the world;
(xii) contract relating to the distribution of the Company's products;
(xiii) franchise agreement;
(xiv) contract, agreement or understanding with any shareholder who beneficially owns five percent (5%) or more of the Company Common Stock or with any officer, director or employee (other than purchase and sales orders incurred for employment on customary terms);
(xv) license agreement or agreement providing for the payment or receipt of royalties or other compensation by the Company in connection with the proprietary rights as disclosed on Schedule 3.14 of the Company Disclosure Schedules; or
(xvi) other agreement material to the Company's business or not entered into in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth Except as specifically disclosed on Schedule 5.11(b3.13(b) of the Company Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure ScheduleSchedules, (i) no contract or commitment required to be disclosed under such caption has been breached or canceled by the other party; (ii) since the date of the balance sheet included in the Company's Interim Financial Statements, no customer or supplier has indicated that it will stop or decrease the rate of business done with the Company, except for changes in the ordinary course of the Company's businesses; (iii) the Company has performed, in all material respects, performed all obligations required to be performed by it in connection with the contracts or commitments required to be disclosed under such caption and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract contract or instrument commitment required to which the Company is a partybe disclosed under such caption; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iiiiv) the Company has no does not have any present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject obligation pursuant to any penalty, right of set-off contract or other charge by the other party thereto for late performance commitment or deliverycommitment set forth under such caption; and (v) as of the date hereof the Company has no does not have any knowledge of any breach or anticipated breach by the any other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts contract or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companycommitment set forth under such caption.
(c) Buyer’s counsel Prior to the date of this Agreement, Parent has been supplied with a true and correct copy of each written contract or commitment, and a written description of each oral contract or commitment, disclosed on Schedule 3.13 of the Material Contracts which are referred to on Schedule 5.11 of the Company Disclosure ScheduleSchedules, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company is not a party to any written or oral:
(i) The Disclosure Schedule lists the following agreements, whether oral or written, to which ▇▇▇▇▇▇▇ is a party or by which ▇▇▇▇▇▇▇ or its assets are bound: (A) collective bargaining agreement or contract with any labor union; (B) bonus, pension, profit sharing, stock option retirement or other form of deferred compensation plan; (C) hospitalization insurance or other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)welfare benefit plan or practice, employee whether formal or informal; (D) stock purchase or other plan or arrangement providing for deferred or other compensation stock option plan; (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(iiE) contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans severance pay for any such person; (F) confidentiality agreement with employees and with consultants, vendors, customers or other third parties; (G) contract, agreement or understanding relating to officers, the voting of ▇▇▇▇▇▇▇'▇ capital stock or the election of directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty of ▇▇▇▇▇▇▇; (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(ivH) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, lien on any asset or group of the assets of the Company;
▇▇▇▇▇▇▇; (vI) Guaranty;
guaranty of any obligation for borrowed money or otherwise; (viJ) lease or agreement under which the Company it 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 payments do not exceed $150,000;
; (viiK) lease or agreement under which the Company it is lessor of of, or permits any third party to hold or operate operate, any property, real or personal, owned or controlled by for which the Company;
annual rental exceeds $10,000 (viiiL) contract or group of related contracts with the same party (other than any contract or group of affiliated parties related contracts for the performance 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 days' or less notice without penalty and involving more than $10,000; (M) contract which involves consideration prohibits ▇▇▇▇▇▇▇ from freely engaging in business anywhere in the aggregate world; (N) contract for the distribution of products through or in conjunction with ▇▇▇▇▇▇▇ (including any distributor, sales and original equipment manufacturer contract); (O) franchise agreement; (P) license agreement or agreement providing for the payment or receipt of royalties or other compensation by ▇▇▇▇▇▇▇ in connection with the intellectual property rights set forth in the Disclosure Schedule; (Q) contract or commitment for capital expenditures in excess of $150,00010,000, (R) agreement for the sale of any capital asset; (S) contract with any affiliate which in any way relates to ▇▇▇▇▇▇▇ (other than purchase and sales orders incurred for employment on customary terms); or (T) other agreement which is either material to the business of ▇▇▇▇▇▇▇ or was not entered into in the ordinary course of business;business (other than agreements required to be listed in the Disclosure Schedule).
(ixii) assignmentThe Disclosure Schedule lists the following agreements, licensewhether oral or written, indemnification to which ▇▇▇▇▇▇▇ is a party or agreement with respect to any intangible property by which ▇▇▇▇▇▇▇ or its assets are bound: (including any Intellectual Property RightsA) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software contract or group of related software licenses of no more than $150,000, except pursuant to contracts with the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third same party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its the purchase of products or services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement by ▇▇▇▇▇▇▇ under which it has granted any Person any registration rights (including demand the undelivered balance of such products or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which services is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
10,000; (xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xviiB) contract or agreement regarding group of related contracts with the same party for the sale of products or services by ▇▇▇▇▇▇▇ under which the undelivered balance of such products or services (including, without limitation, any indemnification provided to free upgrades or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviiiongoing services) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves has a consideration sales price in excess of $150,000 annually. To 10,000; and (C) sales agreement or other customer commitment (other than the extent applicablestandard form of purchase order) which entitles any purchaser to a rebate from or right of set-off against ▇▇▇▇▇▇▇, to return any product to ▇▇▇▇▇▇▇ after acceptance thereof or to delay the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendmentsacceptance thereof, waivers and other modifications to such agreementsreceive future services, upgrades or enhancements, or which varies in any material respect from ▇▇▇▇▇▇▇'▇ standard form agreements for sales.
(biii) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company ▇▇▇▇▇▇▇ has performed, in performed all material respects, all obligations required to be performed through the date hereof by it in connection with the contracts or commitments required to be disclosed in the Disclosure Schedule and is has not in default under or in breach of nor, as of the date hereof, in receipt been notified of any claim of default or breach under any Material Contract contract or instrument commitment required to which be disclosed in the Company is a partyDisclosure Schedule; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company ▇▇▇▇▇▇▇ has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject material obligation pursuant to any penalty, right of set-off contract or other charge by the other party thereto for late performance or deliverycommitment required to be disclosed thereunder; and (v) as of the date hereof the Company ▇▇▇▇▇▇▇ has no knowledge of any breach or anticipated breach by the any other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts contract or commitment required to be disclosed in the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the CompanyDisclosure Schedule.
(civ) Buyer’s counsel Prior to the date of this Agreement, Exmark has been supplied provided with a true correct and correct complete copy of each of the Material Contracts which are written contract or commitment referred to on Schedule 5.11 of in the Disclosure Schedule, together with all known amendments, waivers or other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as Schedule 7.19 hereto (with paragraph references corresponding to those set forth on Schedule 5.11(abelow) contains a true and complete list of each of the Disclosure Schedule following contracts (true and complete copies or, if none, reasonably complete and accurate written descriptions of which, together with all written amendments and supplements thereto, have been delivered or oral contracts or agreements required made available to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”STH), to which HHTI or any of the Company HHTI Subsidiaries is not a party to or by which any written or oralHHTI Hotel is bound:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement all contracts providing for deferred the leasing or other compensation (including any bonuses management of one or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, more of the HHTI Hotels or any other employee benefit plan portion of one or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsmore of the HHTI Hotels;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeall HHTI Franchise Agreements;
(iii) contract under which the Company has advanced all material contracts providing for a commitment of employment or loaned any other Person amountsconsultation services for a specified or unspecified term;
(iv) agreement all contracts with any person containing any provision or indenture relating covenant prohibiting or materially limiting the ability of HHTI or any of the HHTI Subsidiaries to borrowed money or other Indebtedness or the mortgagingengage in any business activity, pledging hire employees, solicit customers or otherwise placing a Lien, other than a Permitted Lien, on compete with any asset or group of assets of the Companyperson;
(v) Guarantyall partnership, joint venture, stockholders' or other similar contracts with any person;
(vi) lease or agreement under which the Company is lessee all notes, debentures, bonds and other evidence of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000HHTI Indebtedness;
(vii) lease or agreement under which the Company is lessor of or permits all contracts relating to any third party to hold or operate any property, real or personal, owned or controlled by the Companybusiness combination;
(viii) contract all contracts between or group among HHTI or any of related contracts with the same party HHTI Subsidiaries, on the one hand, and any of their stockholders or group of affiliated parties affiliates, on the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of businesshand;
(ix) assignment, license, indemnification all collective bargaining or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;similar labor contracts; and
(x) contract concerning all other contracts that involve the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, annual payment or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except potential annual payment pursuant to the Company’s standard form terms of customer agreement in such contract, by or to HHTI or any of the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term HHTI Subsidiaries of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration $25,000 or aggregate payments in excess of $150,000 annually;
100,000 that will not (xviA) contract regarding voting, transfer be fully performed on or other arrangements related prior to the Company’s Capital Stock or warrantsEffective Time, options or other rights to acquire any of Capital Stock of the Company, except pursuant (B) expire by their terms prior to the Company’s standard form of option agreement in the form delivered to Buyer;
Effective Time, or (xviiC) contract or agreement regarding any indemnification provided to or be cancelable by the CompanySurviving Entity, including any contract regarding any indemnification provided with respect to Environmental without penalty, upon not more than 30 days notice, including, without limitation, all leases, contracts for purchase and Safety Requirementssale of assets, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations advance booking contracts and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsbanquet contracts.
(b) All of the contracts, leases, agreements and instruments set forth or Each contract required to be set forth disclosed on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be 7.19 is in full force and effect without penalty and constitutes a legal, valid and binding agreement, enforceable in accordance with their its terms upon consummation and, except as disclosed on Schedule 7.19, neither HHTI, any of the transactions contemplated herebyHHTI Subsidiaries nor, subject to (i) laws the knowledge of general application relating HHTI, any other party to bankruptcysuch contract is in violation, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in breach or default under any such contract (or in breach of nor, as of the date hereof, in receipt of any claim of default with notice or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage lapse of time or the giving of notice or both would result be in a defaultviolation, breach or event of noncompliance by the Company default under any Material Contracts such contract), the effect of which, individually or instrument to which in the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penaltyaggregate, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have result in a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a true and correct copy of each The HHTI Franchise Agreements disclosed on Schedule 7.19 constitute all of the Material Contracts which are referred franchise or similar agreements necessary to on Schedule 5.11 operate and manage the HHTI Hotels and neither HHTI nor any HHTI Subsidiary has received any notice or has any knowledge of the Disclosure Schedule, together with all amendments, waivers an event of default or other changes theretotermination or proposed termination under any such HHTI Franchise Agreement.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on in Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)2.7, the Company is not a party to any written or oral:
Seller has no (i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants------------ collective bargaining agreement, or any other employee benefit plan agreement that contains any severance pay liabilities or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
obligations; (ii) employment, consulting or similar agreement, contract for the employment or engagement commitment which is not terminable without penalty or cost by Seller on notice of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
days or less or which contains an obligation of Seller to pay and/or accrue more than $20,000 per year; (iii) contract under note or other evidence of Indebtedness for borrowed money or the deferred purchase price of property or services, which the Company has advanced or loaned any other Person amounts;
involves a liability of more than $100,000; (iv) agreement of guaranty or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
indemnification; (v) Guaranty;
agreement, contract or commitment limiting the freedom of Seller, any Owner or, to Seller's Knowledge, executive, officer or key employee of Seller to engage in any line of business or compete with any Person; (vi) lease or agreement under which the Company is lessee of or holds or operates any propertyagreement, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate commitment relating to expenditures in excess of $150,000100,000; (vii) agreement, contract or commitment (written or oral) with a supplier of Seller that provided more than $100,000 in goods or services to Seller in fiscal year 2000 or is reasonably expected to provide such amount or more in fiscal year 2001; or (viii) agreement, contract or commitment (written or oral) with customers or other than purchase and sales orders incurred in the ordinary course of business;
Persons which involves $100,000 or more and, by its terms, is not cancelable without penalty or cost within sixty (60) days; (ix) assignmentagreement, contract or commitment providing for the sharing, transfer, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made other disposition by the Company to third parties, except licenses granted by a third party to the Company Seller of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty any Business Rights or other consideration for any such software Proprietary Information; or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) agreement, contract concerning or commitment of the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement Seller with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract Owners or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementstheir respective Affiliates.
(b) All Except as set forth in Schedule 2.7, (i) Seller is not to its ------------ knowledge in breach of, nor has Seller received in writing any claim or assertion that it has breached, any of the contractsterms or conditions of any agreement, leases, agreements and instruments contract or commitment set forth or required to be set forth on Schedule 5.11(b) in any of the Disclosure Schedule are valid, binding Purchased Contracts; and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be (ii) each Purchased Contract is in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated herebyform delivered to Buyer and, subject to (i) laws of general application relating to bankruptcyIndemnitors' Knowledge, insolvency and the relief of debtorsthere is no material breach or default by any party thereto, and Seller has not received any notice (iiin writing or otherwise) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of that any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto wishes to cancel or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companyrenew such Purchased Contract.
(c) Buyer’s counsel Except as set forth in Schedule 2.7, to the Seller's Knowledge ------------ there has not been supplied with a true and correct copy of each any material adverse change since March 31, 2001 in the business relationship of the Material Contracts which are referred Seller relating to on Schedule 5.11 any of the Disclosure SchedulePurchased Assets with any material customer of or material supplier to the Seller since March 31, together with all amendments, waivers or other changes thereto2001.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(aSection 2.13(a) of the Company Disclosure Schedule contains a list (indicating the clause of this Section 2.13 pursuant to which disclosure is made) of all of the following written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company is not a party to any written or oral:
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwiseall amendments thereto), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially agreements listed in the form made available to Buyer that provide for “at-will” employment Sections 2.1(b), 2.8(a), 2.9(a), 2.12(a) and maybe be terminated by (b), 2.15(b), 2.16 or 2.17(c) of the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, Disclosure Schedule and other than purchase and sales orders incurred made in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of norwhich, as of the date hereof, in receipt the Company or any of any claim of default the Company Subsidiaries is a party or breach under any Material Contract or instrument to by which the Company or any of the Company Subsidiaries is a partybound (collectively, the "Material Contracts"): (i) any agreements with any present shareholder, employee, officer, director or consultant (or former shareholder, employee, officer, director or consultant to the extent there remain at the date hereof obligations to be performed by the Company or any of the Company Subsidiaries); (ii) agreements or indentures relating to the borrowing of money; (iii) indemnification agreements or guaranties of any obligation for borrowed money or otherwise; (iv) contracts which prohibit the Company or any of the Company Subsidiaries from freely engaging in business anywhere in the world; (v) any joint venture or profit-sharing agreement (other than with employees); (vi) contracts, not entered into in the ordinary course of business on an arm's- length basis, that are continuing over a period of more than six months from the date hereof and are not terminable by the Company or the Company Subsidiary party thereto on 60 days or less notice without penalties or premiums (including contracts to provide advertising allowances or promotional services); (vii) any agreements for the purchase by the Company or any of the Company Subsidiaries of any materials, equipment, services, or supplies not entered into in the ordinary course of business on an arm's-length basis, that may not be terminated by the Company or the Company Subsidiary party thereto without penalty upon less than three months' notice; (viii) any agreements or commitments for the acquisition, construction or sale of fixed assets owned or to be owned by the Company or any of the Company Subsidiaries that continue for a period of more than six months from the date hereof and may not be terminated without penalty by the Company or the Company Subsidiary party thereto prior to the expiration of such six-month period; (ix) any agreements that provide for the distribution of goods or services that continue for a period of more than six months from the date hereof and may not be terminated without penalty by the Company or the Company Subsidiary party thereto prior to the expiration of such six-month period; (x) any agreements or arrangements for the sale of any of the assets, properties, services or rights of the Company or any of the Company Subsidiaries other than in the ordinary course of business on an arms length basis or for the grant of any preferential rights to purchase any of its assets, properties or rights or that require the consent of any third party to the transfer and assignment of any of its assets, properties or rights; (xi) any agreements with any third party to develop any intellectual property, franchise or marketing concepts involving payments by the Company or the Company Subsidiary party thereto in excess of Cdn. $10,000; (xii) sponsoring agreements involving payments by the Company or the Company Subsidiary party thereto in excess of Cdn. $10,000; (xiii) any commitments for charitable contributions or any other agreements between the Company or any Company Subsidiary and the ▇▇▇ ▇▇▇▇▇▇ Children's Foundation; and (xiv) any other agreements which (A) are material to the Business of the Company and the Company Subsidiaries taken as a whole or (B), except as disclosed in Section 2.13(b) of the Company Disclosure Schedule, pursuant to the terms of which the consent of a third party would be required for the consummation of the transactions contemplated hereby or by the Transaction Agreements.
(b) Except as disclosed in Section 2.8(a) or Section 2.13(b) of the Company Disclosure Schedule, neither the Company nor any of the Company Subsidiaries is a party to any contract, agreement or understanding which contains a "change in control" or similar provision or any other provision which could be triggered by the execution and delivery of, or the consummation of the transactions contemplated by, this Agreement or the Transaction Agreements; and the execution and delivery of, or the consummation of the transactions contemplated by, this Agreement or the Transaction Agreements will not (either alone or upon the occurrence of any additional acts or events) by reason of any such provision result in any payment (whether of severance pay or otherwise) becoming due from the Company or any of the Company Subsidiaries to any person.
(c) On or before the Delivery Date, complete copies of all Material Contracts will be provided to Wendy's or Wendy's solicitors. All Material Contracts have been duly executed and are valid and binding and in full force and effect and, except as set forth in Section 2.13(c) of the Company Disclosure Schedule, none of the Company, any Company Subsidiary or, to the actual knowledge of Seller or the Company, any other party to any Material Contract has breached any provision of, or is in default under, the terms of any Material Contract and no event has occurred which with the passage lapse of time or the giving of notice or both would result in constitute a default, breach or event of noncompliance default by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Share Purchase Agreement (Wendys International Inc)
Contracts and Commitments. (a) Except as expressly specifically contemplated by this Agreement or and except as set forth on Schedule 5.11(a) the "Contracts Schedule" attached hereto, neither the ------------------ Company nor any of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company its Subsidiaries is not a party to any or bound by, whether written or oral, any:
(i) collective bargaining agreement or contract with any labor union or any bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, retirement or any other employee benefit form of deferred compensation plan or arrangementany equity purchase, equity option, hospitalization insurance or any collective bargaining agreement similar plan or any other contract with any labor unionpractice, whether formal or severance agreements, programs, policies or arrangementsinformal;
(ii) any contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeany severance agreements;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any asset of its assets;
(iv) agreements with respect to the lending or group investing of assets of the Companyfunds;
(v) Guarantylicense or royalty agreements;
(vi) lease or agreement under which the Company is lessee guaranty of or holds or operates any propertyobligation, real or personal, owned by any other party, except than endorsements made for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000collection;
(vii) lease or agreement under which the Company it is lessee of, or holds or operates, any personal property owned by any other party calling for payments in excess of $10,000 annually;
(viii) lease or agreement under which it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it (other than leases of equipment in the CompanyOrdinary Course of Business);
(viiiix) contract or group of related contracts with the same party continuing over a period of more than six months from the date or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000dates thereof, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification not terminable by it on 30 days or agreement with respect to any intangible property (including any Intellectual Property Rights) granted less notice without penalties or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no involving more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer10,000;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting prohibits it from freely engaging in any business or competing anywhere in the world; or
(xixxi) any other agreement which is material to its operations and business prospects it whether or involves a consideration not entered into in excess the Ordinary Course of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsBusiness.
(b) All Except as disclosed on the Contracts Schedule, (i) no contract ------------------ or commitment required to be disclosed on the Contracts Schedule has been ------------------ breached or canceled by the other party and the Company, its Subsidiaries and the Sellers have no knowledge of the contracts, leases, agreements and instruments set forth or any anticipated breach by any other party to any contract required to be set forth on Schedule 5.11(bthe Contracts Schedule, (ii) of the Disclosure Schedule are valid, binding and enforceable against no ------------------ customer or supplier has indicated in writing or orally to the Company, and any of its Subsidiaries or any Seller that it shall stop or decrease the rate of business done with the Company or any of its Subsidiaries or that it desires to renegotiate its contract or current arrangement with the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation Company of the transactions contemplated hereby, subject to (i) laws any of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Scheduleits Subsidiaries, (iiii) the Company and each of its Subsidiaries has performed, in performed all material respects, all the obligations required to be performed by it in connection with the contracts or commitments required to be disclosed on the Contracts Schedule and is not in default under or in breach of nor------------------ any contract or commitment required to be disclosed on the Contracts Schedule, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) ------------------ and no event has occurred which with the passage of time or the giving of notice or both would result in a defaultdefault or breach thereunder, breach or event of noncompliance by (iv) neither the Company under nor any Material Contracts or instrument to which the Company is a party; (iii) the Company of its Subsidiaries has no any present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject obligation pursuant to any penaltycontract required to be set forth on the Contracts Schedule, right of set-off or other charge by the other party thereto for late performance or delivery; and (vvi) each agreement required to be set ------------------ forth on the Contracts Schedule is legal, valid, binding, enforceable and in ------------------ full force and effect and will continue as such following the consummation of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companytransactions contemplated hereby.
(c) Buyer’s counsel has been supplied The Sellers have provided the Purchaser with a true and correct copy of each of the Material Contracts all written contracts which are referred required to be disclosed on Schedule 5.11 of the Disclosure Contracts Schedule, in each case together with all amendments, waivers or other ------------------ changes theretothereto (all of which are disclosed on the Contracts Schedule). The ------------------ Contracts Schedule contains an accurate and complete description of all material ------------------ terms of all oral contracts required to be set forth thereon.
Appears in 1 contract
Sources: Purchase Agreement (National Equipment Services Inc)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(aSection 4.8(a) of the Disclosure Schedule (all sets forth a complete list of each of the following written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)Contracts (collectively, the Company is not a party to any written or oral:"MATERIAL CONTRACTS"):
(i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including Mass-Market Contract creating any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultantspartnership, 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 arrangementsIndebtedness for Borrowed Money;
(ii) contract for the employment Mass-Market Contract (including purchase orders, franchise agreements and undertakings or engagement of commitments to any officer, individual employee governmental or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form regulatory authority) not made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business;
(ixiii) assignmentContracts of employment with Mass-Market Employees (including without limitation employment, change in control, golden parachute, severance or similar agreements or arrangements and other Mass-Market Contracts with Mass-Market Employees);
(iv) Mass-Market Contracts consisting of sales commitments for tobacco products;
(v) any other Mass-Market Contract involving payments by Seller in excess of $50,000 annually that are not cancelable on 30-days' notice by Seller, without payment of penalty or premium;
(vi) Mass-Market Contract relating to, or evidences of, or guarantees of, or providing security for, Indebtedness for Borrowed Money or the deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any Mass-Market Asset);
(vii) license, indemnification sale, distribution, commission, marketing, agent, franchise, technical assistance or agreement with respect similar contract relating to any intangible property or providing for the marketing and/or sale of the products of the Mass-Market Cigar Business to which Seller is a party or by which Seller is bound;
(including any Intellectual Property Rightsviii) granted Mass-Market Contract that requires the payment or made incurrence of a Mass-Market Liability, or the rendering of services or the sale of goods by Seller subsequent to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company date of commercially available, unmodified, “off the shelf” software used solely for the internal use this Agreement of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant 50,000;
(ix) Mass-Market Contract containing a covenant limiting the freedom of the Seller or any Affiliate of the Seller to the Company’s standard form of customer agreement engage in the form delivered Mass-Market Cigar Business or the transactions contemplated by the Ancillary Agreements or to Buyer;compete with any Person (other than the Non-Compete Agreement); or
(x) contract concerning Any other Mass-Market Contract required by applicable law to be filed by Seller with the provision of co-location U.S. Securities and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;Exchange Commission.
(xib) contract pursuant Seller has furnished to which (i) Company Intellectual Property Rights owned by Purchaser a third party are actually embedded in Company Softwarecopy of each of the Material Contracts, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;and each such copy is correct and complete and includes all modifications thereof.
(xiic) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form All of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified indicated with an asterisk ("*") on Schedule 5.11 Section 4.8(a) of the Disclosure Schedule are separately identified in full force and effect and constitute the legal, valid and binding obligations of Seller and, to the Knowledge of Seller, of the other parties thereto (except, in each case, as may be limited by type bankruptcy, reorganization, insolvency and similar laws of agreementgeneral application relating to or affecting the enforcement of rights of creditors or the relief of debtors), and to the Knowledge of Seller, no condition exists or event, act or omission has occurred which, with or without notice, or lapse of time or both, would constitute a default or a basis of force majeure or other claim of excusable delay or nonperformance thereunder. The description Except for the consents of all parties listed on Schedule 4.8(c) (the "REQUIRED CONSENTS"), no consent of any party to the Material Contracts identified on Schedule 5.11 is required to assign the Material Contracts, and Seller's rights and obligations thereunder, to Purchaser. No other party to any Material Contract has notified Seller of the assertion of its right to renegotiate the terms or conditions of any Material Contract, and, to the Knowledge of Seller, no such basis exists.
(d) For informational purposes, Seller has set forth in Section 4.8(d) of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
a list of Mass-Market Contracts in existence on the date hereof (bi) All of the contracts, leases, agreements and instruments set forth or which are not required to be set forth on Schedule 5.11(b4.8(a) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument with respect to which the Company is a party; (ii) Seller makes no event has occurred which with the passage of time representation or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument warranty to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the CompanyPurchaser.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (General Cigar Holdings Inc)
Contracts and Commitments. i. All of the contracts of the Company and its Subsidiaries that are required to be described in the documents described under paragraph 5V hereof (athe "SEC Documents") or to be filed as exhibits thereto are described in the ------------- SEC Documents or filed as exhibits thereto, and (except as set forth on the attached "Contracts Schedule") all such contracts required to be filed as ------------------ exhibits thereto are valid, binding and enforceable in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, similar laws affecting creditors' rights generally or general principles of equity. True and complete copies of all such contracts have been made available to Purchaser. Neither the Company nor any of its Subsidiaries is in breach of or in default under any such contract, nor, to the knowledge of the Company, is any other party in material breach of or in default under any such contract.
ii. Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written attached "Contracts Schedule" or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), attached "Employee Benefits ------------------ ----------------- Schedule," neither the Company nor any Subsidiary is not a party to or bound by, nor -------- are any assets, properties or operations of the Company or any of its Subsidiaries bound by, any written or oral:
(i1) employment, non-competition, consulting or severance agreement;
(2) lease of real property;
(3) lease of personal property with an annual base rental obligation of more than $100,000 or a total remaining rental obligation of more than $250,000;
(4) joint venture or partnership agreement;
(5) agreement with a term of more than six months which is not terminable by the Company or any Subsidiary upon less than 30 days' notice without penalty or damages, and which involves an obligation of the Company of more than $100,000;
(6) agreement containing covenants limiting the ability of the Company or any of its Subsidiaries to compete in any line of business with any Person in any area or territory;
(7) contract involving any commitment of suretyship, guaranty or indemnification by the Company;
(8) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)option, employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsarrange ments;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii9) contract under which the Company or Subsidiary has advanced or loaned loaned, or made any Investment in, any other Person amounts(other than a Wholly Owned Subsidiary) of amounts in the aggregate exceeding;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii10) agreement under which it has granted any Person any registration rights (including including, without limitation, demand or and piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix11) agreement related to hazardous waste disposal, solid waste disposal, wastewater management, investigation of environmental matters, environmental remediation, employment of environmental consultants, or any other agreement which is material to its operations and business prospects environmental obligation, liability or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
iii. Except as would not (beither individually or in the aggregate) All have a Material Adverse Effect: all of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Contracts Schedule are valid, binding and ------------------ enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall except as such enforceability may be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to limited by bankruptcy, insolvency and the relief insolvency, reorganization, similar laws affecting creditors' rights generally or general principles of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) equity; the Company has performed, in all material respects, and each Subsidiary have performed all obligations required to be performed by it them under the contracts, agreements and is instruments required to be listed on the Contracts Schedule and are not in default under or in breach of nor, as of the date hereof, ------------------ nor in receipt of any claim of default or breach under any Material Contract contract, agreement or instrument required to which be listed on the Company is a partyContracts Schedule; (ii) no event has ------------------ occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company or any Subsidiary under any Material Contracts contract, agreement or instrument required to which be listed on the Contracts Schedule; neither the Company is a party; (iii) the Company nor any Subsidiary has no any present ------------------ expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof neither the Company nor any Subsidiary has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, leasecontract, agreement, instrument or commitment required to which they are parties. The be listed on the Contracts Schedule; and neither the Company nor any Subsidiary is not a party to any Material Contracts ------------------ contract requiring it to purchase or sell goods or services or lease property above or below (as the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companycase may be) prevailing market prices and rates.
(c) Buyer’s iv. The Purchasers' special counsel has been supplied with given the opportunity to review a true and correct copy of each of the Material Contracts written instruments, plans, contracts and agreements and an accurate description of each of the oral arrangements, contracts and agreements which are referred to on Schedule 5.11 of the Disclosure Contracts --------- Schedule, together with all amendments, waivers or other changes thereto.. --------
Appears in 1 contract
Sources: Stock and Warrant Purchase Agreement (Krasovec Frank P)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) Section 4.18 of the Disclosure Schedule (contains a complete and accurate list of all written Contracts of the following categories to which Fred Meyer or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), the Company any of its Subsidiaries is not a party to or by which any written or oralof ▇▇▇m ▇▇ ▇ound as of the date of this Agreement:
(ia) pensionemployment contracts, profit sharingincluding, stock option (without limitation, contracts to employ executive officers and other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract contracts with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliatesstockholders of Fred Meyer, and any other than Contracts with or for the offer letters substantially benefit of Fred ▇▇▇e▇ ▇▇ its affiliates, and all severance, change in control ▇▇ ▇i▇▇▇▇▇ arrangements with any officers, employees or agents of Fred Meyer that will result in any obligation (absolute or continge▇▇) o▇ ▇▇▇d Meyer or any of its Subsidiaries to make any payment to any of▇▇▇▇r▇, ▇▇ployees or agents of Fred Meyer following either the form made available to Buyer that provide for “at-will” employment and maybe be terminated by consummation of the Company upon less than thirty (30) days’ noticetransactions co▇▇▇▇p▇▇▇▇▇ hereby, termination of employment, or both;
(iiib) contract under which the Company has advanced or loaned any other Person amountslabor contracts;
(ivc) agreement material distribution, franchise, license, sales, agency or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Companyadvertising contracts;
(vd) Guaranty;
Contracts for the purchase of inventory which are not cancelable (viwithout material penalty, cost or other liability) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
within 1 year (vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than Contracts for the purchase of holiday goods in accordance with customary industry practices) and sales orders incurred other Contracts made in the ordinary course of business;
(ix) assignment, license, indemnification business involving annual expenditures or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration liabilities in excess of $150,000 annuallywhich are not cancelable (without material penalty, cost or other liability) within thirty (30)days;
(xvie) contract regarding votingpromissory notes, transfer loans, agreements, indentures, evidences of indebtedness or other arrangements related instruments relating to the Company’s Capital Stock lending of money, whether as borrower, lender or warrantsguarantor, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually250,000;
(f) Contracts containing covenants limiting the freedom of Fred Meyer or any of its Subsidiaries to engage in any line of busi▇▇▇▇ ▇▇ ▇▇mpete with any Person or operate at any location;
(g) powers of attorney;
(h) joint venture or partnership agreements or joint development or similar agreements pursuant to which any third party is entitled to develop any Property and/or Facility on behalf of Fred Meyer or its Subsidiaries;
(i) any other Contract, ▇▇▇▇h▇▇ ▇▇milar or dissimilar to the foregoing, which would be material to Fred Meyer and its Subsidiaries taken as a whole;
(j) an▇ ▇▇n▇▇▇▇▇ with any federal, state or local government; and
(k) Contracts involving annual expenditures or liabilities in excess of $250,000. To True copies of the extent applicable, the Material written Contracts identified on Schedule 5.11 in Section 4.18 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications have been delivered or made available to such agreementsSmith's.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Merger Agreement (Meyer Fred Inc)
Contracts and Commitments. (a1) Except as expressly contemplated by this Agreement or as set forth on in Section 3.18 or in the "Contracts Schedule" attached hereto as Schedule 5.11(a3.12(a) or in the "Customer Contracts Schedule" attached hereto as Schedule 3.12(d), and except for any contract entered into in the ordinary course of the Disclosure Schedule Business as to which Seller's remaining obligation is less than $10,000 as of the date hereof (provided that all written or oral of such contracts or agreements required to be set forth on such schedule being referred to herein as do not exceed $50,000 in the “Material Contracts” and each a “Material Contract”aggregate), the Company Seller is not a party to any written or oralbound by any:
(i1) bonus, pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase retirement or other deferred compensation plan or arrangement providing for deferred stock purchase, stock option, hospitalization insurance or other compensation (including any bonuses similar plan or other remuneration and practice, whether in cash formal or otherwise), to employees, former employees or consultantsinformal, or any other employee benefit plan severance agreements or arrangement, arrangements or any collective bargaining agreement or any other contracts requiring Seller to pay post-retirement medical benefits;
(2) contract with any labor union, union or severance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticeconsulting basis;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv3) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lienlien on any of the Purchased Assets;
(4) guarantee of any obligation for borrowed money or otherwise, other than a Permitted Lien, on any asset or group endorsements made for collection in the ordinary course of assets of the Companybusiness;
(v5) Guarantyagreement or commitment with respect to the lending or investing of funds to or in other persons or entities;
(vi6) license or royalty agreement;
(7) lease or agreement under which the Company it is lessee of or holds or operates any property, real or personal, personal property owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) 8) lease or agreement under which the Company it is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Companyit;
(viii9) contract or group of related contracts with the same party for the purchase or group sale of affiliated parties products or services other than the performance Customer Contracts (as defined in Section 3.12(d) hereof);
(10) other contract with any party continuing over a period of more than six months from the date or dates thereof, not terminable by it on thirty (30) days' or less notice without penalties;
(11) contract which involves consideration prohibits it from freely engaging in business or in any way restrains its business activities anywhere in the aggregate in excess world;
(12) contract relating to the distribution of $150,000its products;
(13) contract with any officer, director, partner, shareholder or other than purchase and sales orders incurred insider; or
(14) other agreements whether or not entered into in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b2) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of specifically disclosed in the Disclosure Contracts Schedule, (i) to Seller's knowledge, no contract or commitment has been breached in any respect or canceled by the Company other party, (ii) since the date of the Latest Balance Sheet, no supplier has performednotified Seller that it shall stop or decrease in any material respect the rate of business done with Seller, (iii) Seller has in all material respects, respects performed all the obligations required to be performed by it to the date of this Agreement and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract material lease, contract, commitment or instrument other agreement to which the Company it is a party; and (iiiv) no event has occurred which with the passage of time or the giving of notice or both would result in a default, material breach or event of noncompliance by the Company default under any Material Contracts lease, contract, instrument or instrument other agreement to which the Company Seller is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c3) Buyer’s counsel Purchaser has been supplied with a true and correct copy of each of the Material Contracts all written contracts which are referred to on Schedule 5.11 of the Disclosure Contract Schedule, together with all amendments, waivers or other changes thereto.
(4) Seller has no knowledge of any (i) pending or threatened termination, cancellation, limitation, modification or change in any of Seller's business relationship with any customer or group of customers related to the Business or (ii) changes or pending changes in any law, rule, regulation, technology, or business relationship or other circumstance that is reasonably likely to result in the loss of any customers related to the Business after the date hereof. Each contract, agreement or lease with customers of Seller relating to the Business ("Customer Contracts") is in one of the forms attached to the "Customer Contract Schedule" attached hereto as Schedule 3.12(d), except for completion of blanks and has not been modified with respect to the limitations on liability or service charge increase provisions, whether in writing, orally, by course of dealings or otherwise, and Seller is not providing or obligated to provide goods or services to others except pursuant to a written contract in such form in each case. Except as indicated on the Customer Contract Schedule, (A) to the Seller's knowledge, each of the Customer Contracts is valid, enforceable and in full force and effect in accordance with the terms thereof, (B) to the Seller's knowledge, there is no existing material default or event or condition which, with notice or lapse of time or both, would constitute an event of material default under any Customer Contract, (C) no Customer Contract has been amended, modified, supplemented or otherwise altered orally, in writing or by course of conduct, (D) except as set forth on Schedule 3.12(d), no Customer Contract requires the consent of the Customer or any other party to affect a valid assignment thereof to Purchaser without causing a default or giving rise to a right of termination thereunder, and (E) each Customer Contract complies with all applicable laws, rules and regulations.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)4.14, the Company is Sellers are not a party to any written oral or oralwritten:
(i) contract with any labor union or any bonus, pension, profit sharing, retirement or any other form of deferred compensation plan or any stock purchase, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other similar plan or arrangement providing for deferred practice, whether formal or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultantsinformal, or any other employee benefit plan severance agreement or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) management agreement, contract for the employment or engagement of any officer, partner, individual employee or other Person person on a full-time, part-time, consulting, contractor time or consulting basis or providing for the payment of any cash or other basis compensation or relating to loans to officers, directors benefits upon the sale of the Business or Affiliates, other than prohibiting competition or the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ noticedisclosure of trade secrets or Confidential Information;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any asset of Sellers’ assets or group letter of assets credit arrangements;
(iv) agreements with respect to the lending or investing of the Companyfunds;
(v) Guarantylicense or royalty agreements;
(vi) lease nondisclosure or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000confidentiality agreements;
(vii) lease or agreement under which the Company is lessor Sellers are lessees of or permits hold or operate (A) any real property owned by any other party or (B) personal property owned by any other party for which the annual rental exceeds $15,000;
(viii) lease or agreement under which Sellers are lessors of or permit any third party to hold or operate any property, real or personal, owned or controlled by the CompanySellers;
(viiiix) broker, distributor, vendor, customer or maintenance agreements;
(x) other contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by continuing over a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term period of more than six (6) months which is from the date or dates thereof, not terminable by the Company Sellers upon less than thirty (30) days’ or less notice without penalty and involves a consideration or involving more than $15,000;
(xi) contract which prohibits Sellers from freely engaging in excess business anywhere in the world;
(xii) contract relating to the marketing, sale, advertising or promotion of $150,000 annuallySellers’ products;
(xiii) franchise or agency agreements;
(xiv) contract with any officer, director, employee, shareholder, or Affiliate of Sellers or any individual related by marriage or adoption to any such individual or any entity in which any such Person owns any beneficial interest;
(xv) warranty agreement with respect to products sold or indemnity agreement with any supplier to Sellers under which Sellers are obligated to indemnify such supplier against product warranty or infringement or similar claims;
(xvi) contract regarding votingagreements relating to ownership of or investments in any business or enterprise, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement including investments in the form delivered to Buyerjoint ventures and minority equity investments;
(xvii) contract contracts, agreements or agreement regarding any indemnification provided arrangements providing for commissions or other payments to or by the Companyany Person based on or determined by reference to sales, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyerpurchases or profits;
(xviii) contract power of attorney executed by or agreement prohibiting it from freely engaging in on behalf of Sellers;
(xix) licenses (including all inbound and outbound licenses), other than licenses for off-the-shelf software solely for the internal use of Sellers for an aggregate purchase price of less than $5,000 to which Sellers are a party and any business other agreements affecting Sellers’ ability to use or competing anywhere in the worlddisclose any Proprietary Rights; or
(xixxx) any other agreement which is material to its operations and business prospects Sellers, whether or involves a consideration not entered into in excess the Ordinary Course of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsBusiness.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth Except as specifically disclosed on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule4.14, (i) Sellers and the Company has performed, in all material respects, other party thereto have performed all obligations required to be performed by it such Person under the contracts or commitments required to be listed on Schedule 4.14 and there is not in no breach of or default under such contract or in breach of norcommitment or any event which, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the upon giving of notice or both lapse of time or both, would constitute a breach or default (other than technical breach or default that do not result in a defaulteconomic consequences to the contracting parties), (ii) to the Knowledge of Sellers, there is no anticipated breach by any party to any contract or event of noncompliance by the Company under any Material Contracts or instrument commitment required to which the Company is a party; be listed on Schedule 4.14, (iii) the Company has no present expectation Sellers have not assigned, delegated or intention otherwise transferred to any Person any of not fully performing all such obligations; its rights, title or interest under any contract or commitment required to be listed on Schedule 4.14, and (iv) no partially-filled or unfilled customer purchase order or sales order each contract and commitment required to be listed on Schedule 4.14 is legal, valid, binding, enforceable and in full force and effect, and will continue as such following the consummation of the transactions contemplated hereby (subject to cancellation or any other modification by the other party thereto or is bankruptcy, moratorium and similar laws and subject to any penalty, right the application of set-off or specific performance and other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companyequitable principles).
(c) Buyer’s counsel has Buyers have heretofore been supplied with a true and correct copy of each all written contracts (and a true and correct written description of the Material Contracts all oral contracts) which are referred to on Schedule 5.11 of the Disclosure Schedule4.14, together with all amendments, exhibits, attachments, waivers or other changes thereto.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on in Schedule 5.11(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)3.11 hereto, the Company Seller is not a party to any or bound by, whether written or oral:
, any: (i) pension, profit sharing, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, whether formal or severance agreements, programs, policies or arrangements;
informal; (ii) contract for the employment or engagement of any officer, individual employee or other Person person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
any severance agreements; (iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed the borrowing of money or other Indebtedness or the to mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, Lien on any asset or group of assets of the Company;
Purchased Assets; (iv) license or royalty agreements; (v) Guaranty;
lease or agreement under which Seller is lessee of, or holds or operates, any personal property owned by any other party for which annual rental exceeds $50,000; (vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company Seller is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
it for which annual rental exceeds $50,000; (viiivii) contract or group of related contracts with the same party for the purchase or group sale of affiliated parties raw materials, commodities, supplies, products or other personal property or for the furnishing or receipt of services which either calls for performance over a period of which more than six months or involves consideration in the aggregate a sum in excess of $150,00050,000 or which may not be terminable with less than six months' notice; (viii) contract relating to the distribution, other marketing or sales of its products or services (including contracts to provide advertising allowances or promotional services) involving more than purchase and sales orders incurred in the ordinary course of business;
$50,000; (ix) assignmentfranchise agreements, license(x) agreements, indemnification contracts or agreement with respect understandings pursuant to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company which Seller subcontracts work to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
; (xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
or (xixxii) any other agreement which is Seller deems material to its operations and business prospects the Business taken as a whole whether or involves a consideration not entered into in excess the ordinary course of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsbusiness.
(b) All Except as disclosed in Schedule 3.11, (i) all of the contractsAssumed Contracts are in full force and effect, leases, agreements and instruments set forth have not been amended or required to be set forth on Schedule 5.11(b) modified as of the Disclosure Schedule Closing, and are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation (ii) to the knowledge of Seller, no Assumed Contract has been breached or canceled by the transactions contemplated herebyother party since December 31, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors1995, and (iiiii) rules of law governing specific performanceSeller has, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) to its knowledge, performed all of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it Seller in connection with the Assumed Contracts and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract such contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companycommitment.
(c) Buyer’s counsel Seller has been supplied provided Buyer with a true and correct copy of each of the Material Contracts which are all Assumed Contracts, and has made available to Buyer those written contracts referred to on Schedule 5.11 of the Disclosure Schedule3.11 which are not Assumed Contracts, in each case together with all amendments, waivers or other changes thereto. To Seller's knowledge, Schedule 3.11 contains an accurate and complete description of all material terms of all oral contracts referred to therein.
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by for this Agreement or as set forth on Schedule 5.11(a) of described in the Disclosure Schedule (all written or oral contracts or agreements required schedules to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”)this Agreement, the Company no Seller is not a party to nor are the Assets bound by or subject to any written or oral:
of the following agreements: (i) collective bargaining agreements or contracts with any labor union; (ii) bonus, pension, profit sharing, stock option (retirement or other forms of deferred compensation plans, other than as those described in Section 4.15 and the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase schedules contemplated by Section 4.15; (iii) hospitalization insurance or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee welfare benefit plan or arrangementpractice, whether formal or any collective bargaining agreement or any informal other contract with any labor union, or severance agreements, programs, policies or arrangements;
than as described in Section 4.15 and the schedules contemplated by Section 4.15; (iiiv) contract for the employment or engagement of any officer, individual employee employee, contractor or other Person on a full-time, part-time, consulting, contractor time or other consulting basis or relating to loans to officers, directors or Affiliates, severance pay for any such Person (other than the offer letters substantially in the form made available to Buyer contracts with employees that provide for “at-"at will” " employment and maybe be terminated by the Company upon less than thirty do not provide for severance or change of control payments); (30v) days’ notice;
confidentiality agreement; (iii) contract under which the Company has advanced or loaned any other Person amounts;
(ivvi) agreement or indenture relating to the borrowing of money or placing a Lien on any of the Assets; (vii) guaranty of any obligation for borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
otherwise; (v) Guaranty;
(viviii) lease or agreement under which the Company it is lessee of of, or holds or operates any property, real or personal, owned by any other partyparty relating to the Business, except for any lease of real other than as described on Schedules C-1 and C-2 or personal property under which the aggregate annual rental payments do not exceed $150,000;
Schedule D; (viiix) lease or agreement under which the Company it is lessor of of, or permits any third party to hold or operate operate, any property, real or personal, owned personal relating to the Business extending for a period of time longer than 3 months or controlled involving expenditures by Sellers in the Company;
aggregate in excess of $50,000; (viiix) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred in the ordinary course of business;
(ix) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use purchase, licensing or sale of the Company for an aggregate feeproducts or services (whether as licensor, royalty licensee, buyer or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
seller); (xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting prohibits it from freely engaging in any business or competing anywhere in the world; or
(xixxii) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To contract for the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreements.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms distribution of any of the Material Contracts on the part Products (as hereinafter defined) of the Company.
Business (cincluding any distributor, master distributor, sales representative, agency, value-added resellers, sales and original equipment manufacturer contract); (xiii) Buyer’s counsel has been supplied with a true and correct copy franchise agreement; (xiv) license agreement or agreement providing for the payment or receipt of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers royalties or other changes thereto.compensation by or to Sellers, including any contract related to Licensed-In Intellectual Property Rights or Owned Intellectual Property Rights; (xv) contract or commitment for capital expenditures with respect to the Business after the date of this Agreement; (xvi) agreement for the sale of any capital asset; or
Appears in 1 contract
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(aSection 2.19(a) of the Disclosure Schedule (all written or oral contracts or agreements required to be set sets forth on such schedule being referred to herein as the “Material Contracts” a complete and each a “Material Contract”), the Company is not a party to any written or oral:accurate list of all
(i) pensioncredit agreements, profit sharingnotes, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered indentures, security agreements, pledges, guarantees of or agreements to Buyer), employee stock purchase assume any such debt obligation of others or other plan or arrangement providing similar documents relating to indebtedness for deferred or other compensation borrowed money (including interest rate or currency swaps, ▇▇▇▇▇▇ or straddles or similar transactions) to which the Companies are a party or by which any bonuses of its assets are bound, restricted or other remuneration and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangementsencumbered;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-timeemployment, consulting, contractor severance or other basis termination agreements which require or relating may require the Companies to loans to officerspay (A) more than $100,000 in any twelve-month period, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30B) days’ noticeany severance or termination pay liability or obligation;
(iii) agreements by or among the shareholders of the Companies relating to or affecting the acquisition, disposition or voting of the capital stock of the Companies;
(b) Except as set forth in Section 2.19(b) of the Disclosure Schedule,
(i) the Companies do not have any contract under which is material to its business, operations or prospects;
(ii) no purchase contract of either of the Company has advanced Companies continue for a period of more than twelve months or loaned requires payment of more than $10,000 in any other Person amountstwelve-month period;
(iii) no Employee Benefit Plan contains any severance or termination pay liability or obligation;
(iv) agreement or indenture relating the Companies have no employee to borrowed money or other Indebtedness or whom it is paying base salary at the mortgaging, pledging or otherwise placing a Lien, other annual rate of more than a Permitted Lien, on any asset or group of assets of the Company$100,000 for services rendered;
(v) Guarantythe Companies are not restricted by any agreement from carrying on its business in any respect anywhere in the world;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments Companies do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits have any third party outstanding loan to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000person, other than purchase advances to employees for travel and sales orders incurred entertainment expenses in the ordinary course of business;; and
(ixvii) assignmentthe Companies do not have any power of attorney outstanding or any obligation or liability (whether absolute, licenseaccrued, indemnification contingent or agreement with otherwise), as surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate feeobligation of any person, royalty corporation, partnership, joint venture, limited liability company, association, organization or other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annually;
(xvi) contract regarding voting, transfer or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to or by the Company, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirements, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xviii) contract or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsentity.
(b) All of the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their terms upon consummation of the transactions contemplated hereby, subject to (i) laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a true and correct copy of each of the Material Contracts which are referred to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Berliner Communications Inc)
Contracts and Commitments. (a) Except as expressly contemplated by this Agreement or as set forth on Schedule 5.11(ain Section 3.18(a) of the Comanche Disclosure Schedule Schedules (all written or oral contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Comanche Contracts” and each a “Material Contract”), the Company neither Comanche nor any of its Subsidiaries is not a party to or bound by any of the following (whether written or oral:, express or implied):
(i) pensionemployment, profit sharingservices, stock option (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer)independent contractor, employee stock purchase or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration and whether in cash or otherwise)consulting, to employeeschange-in-control, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor unionretention, or severance agreements, programs, policies contracts or similar arrangements;
(ii) contract for the employment or engagement collective bargaining agreements, memorandums of any officerunderstanding, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty contracts with any Union (30) days’ noticeas defined herein);
(iii) contract under which the Company has advanced bonus, stock option, restricted stock, stock appreciation, deferred compensation arrangement, profit-sharing plan, pension plan, retirement plan, welfare plan or loaned any other Person amountsemployee benefit agreement or arrangement;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) material lease or agreement under which the Company is lessee of or holds or operates license with respect to any property, real or personal, owned by any other partywhether as landlord, except tenant, licensor or licensee;
(v) contract or commitment for any lease capital expenditures in excess of real $50,000 in the aggregate;
(vi) material contract or personal property under which commitment for the aggregate annual rental payments do purchase of materials or supplies or for the performance of services over a period of more than sixty (60) days after the date of this Agreement and not exceed $150,000terminable upon notice of sixty (60) days or less;
(vii) lease contract or agreement under which the Company is lessor of option to purchase or permits sell any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, personal property other than any contract for the purchase and sales orders incurred of personal property in the ordinary course of business;
(ixviii) assignmentcontract, license, indemnification agreement or agreement letter with respect to the management or operations of Comanche or Comanche Bank imposed by any intangible property Governmental Body having supervisory jurisdiction over Comanche or Comanche Bank;
(including any Intellectual Property Rightsix) granted note, debenture, agreement, contract or made indenture related to the Company, borrowing by Comanche or granted or made by the Company to third parties, except licenses granted by a third party to the Company any of commercially available, unmodified, “off the shelf” software used solely for the internal use its Subsidiaries of the Company for an aggregate fee, royalty or money other consideration for any such software or group of related software licenses of no more than $150,000, except pursuant to the Company’s standard form of customer agreement those entered into in the form delivered to Buyerordinary course of business;
(x) contract concerning guaranty of any obligation for the provision borrowing of co-location money, excluding endorsements made for collection, repurchase or resell agreements, letters of credit and related services to guaranties made in the Company, which services are used to fulfill obligations to provide software and data hosting services to customersordinary course of business;
(xi) contract pursuant agreement with or extension of credit to which any executive officer or director of Comanche or any of its Subsidiaries or holder of ten percent (i10%) Company Intellectual Property Rights owned by a third party are actually embedded in Company Softwareor more of the issued and outstanding Comanche Stock, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Softwareany affiliate of such person;
(xii) warranty agreement with respect any executive officer or director of Comanche or any of its Subsidiaries or holder of ten percent (10%) or more of the issued and outstanding Comanche Stock or any affiliate of such person, relating to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyerbank owned life insurance (“BOLI”);
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights)lease of real property;
(xiv) salesany agreement containing covenants that limit the ability of Comanche or any of its Subsidiaries to compete in any line of business or with any Person, distributionor that involve any restriction on the geographic area in which, manufacturingor method by which, supply Comanche (including any successor thereof) or franchise agreementany of its Subsidiaries (including any successor thereof) may carry on its business (other than as may be required by law or any Governmental Body);
(xv) any data processing or other electronic banking services agreement with a term or contract which may not be terminated without payment or penalty upon notice of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration in excess of $150,000 annuallydays or less;
(xvi) contract regarding voting, transfer any agreement pursuant to which Comanche or other arrangements related to the Company’s Capital Stock or warrants, options or other rights to acquire any of Capital Stock of the Company, except pursuant its Subsidiaries may become obligated to the Company’s standard form of option agreement invest in the form delivered or contribute capital to Buyerany Person;
(xvii) contract or any agreement regarding any indemnification provided to or by between Comanche Bank, on the Companyone hand, including any contract regarding any indemnification provided with respect to Environmental and Safety Requirementsa Person listed on Section 3.1(e) of the Comanche Disclosure Schedules, except pursuant to on the Company’s standard form of customer agreement in other hand (the form delivered to Buyer;“Affiliate Agreements”); or
(xviii) contract contracts, other than the foregoing, with payments aggregating $50,000 or agreement prohibiting it from freely engaging in any business or competing anywhere more not made in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess ordinary course of $150,000 annually. To the extent applicable, the Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreement. The description of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify all amendments, waivers and other modifications to such agreementsbusiness.
(b) All of Each Comanche Contract is legal, valid and binding on Comanche or its Subsidiaries, as the contracts, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Companycase may be, and to the Company’s knowledgeknowledge of Comanche, against the other party parties thereto, enforceable by Comanche or its Subsidiaries, as the case may be, in accordance with their respective terms, and shall be in full force and effect without penalty in accordance with their its terms upon consummation of the transactions contemplated hereby, (subject to (i) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws of general application relating to bankruptcy, insolvency creditors’ rights generally and the relief general equitable principles). Each of debtors, Comanche and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company its Subsidiaries has performed, performed in all material respects, respects all obligations required to be performed by it to date under each Comanche Contract and is not in default under there are no existing material defaults by Comanche or in breach of norits Subsidiary, as the case may be, or, to the knowledge of Comanche, the date hereofother party thereunder and, in receipt to the knowledge of Comanche, there are no allegations or assertions of such by any claim of default or breach party under any Material such Comanche Contract or instrument to which the Company is a party; (ii) no event has occurred which any events that with the passage notice, lapse of time or the giving happening or occurrence of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts or instrument to which the Company is a party; (iii) the Company has no present expectation or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject to cancellation or any other modification by the other party thereto or is subject event would be reasonably likely to any penalty, right of set-off or other charge by the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are partiesconstitute a default thereunder. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Company.
(c) Buyer’s counsel has been supplied with a A true and correct complete copy of each of the Material Contracts which are referred Comanche Contract has been delivered or made available to on Schedule 5.11 of the Disclosure Schedule, together with all amendments, waivers or other changes theretoSpirit.
Appears in 1 contract
Sources: Merger Agreement (Spirit of Texas Bancshares, Inc.)
Contracts and Commitments. (a) Except as expressly contemplated for any contracts which have prior the date hereof been terminated in accordance with their terms or been terminated by this Agreement the parties thereto, in each case with no continuing liabilities or as set forth obligations on Schedule 5.11(a) the part of the Company or any Subsidiary, Section 4.13 of the Company Disclosure Schedule Letter sets forth a true, correct and complete list of the following contracts to which the Company or a Subsidiary is a party (all written including every amendment, modification or oral supplement to the foregoing): (i) any contracts of employment, (ii) any contracts or agreements required to be set forth on such schedule being referred to herein as the “Material Contracts” and each a “Material Contract”), which limit or restrict the Company is not a party or any Subsidiary (or, to the knowledge of the Company and its Subsidiaries, any written employee) from engaging in any business in any jurisdiction or oral:
limit the freedom of the Company or any Subsidiary to compete in any line of business in any geographic area or requiring the Company or any Subsidiary to share any profits, (iiii) pension, profit sharing, stock option agreements or arrangements for the purchase or sale of any assets (other than the Company Options granted under the Company Stock Plan on standard forms delivered to Buyer), employee stock purchase purchases or other plan or arrangement providing for deferred or other compensation (including any bonuses or other remuneration sales of products and whether in cash or otherwise), to employees, former employees or consultants, or any other employee benefit plan or arrangement, or any collective bargaining agreement or any other contract with any labor union, or severance agreements, programs, policies or arrangements;
(ii) contract for the employment or engagement of any officer, individual employee or other Person on a full-time, part-time, consulting, contractor or other basis or relating to loans to officers, directors or Affiliates, other than the offer letters substantially in the form made available to Buyer that provide for “at-will” employment and maybe be terminated by the Company upon less than thirty (30) days’ notice;
(iii) contract under which the Company has advanced or loaned any other Person amounts;
(iv) agreement or indenture relating to borrowed money or other Indebtedness or the mortgaging, pledging or otherwise placing a Lien, other than a Permitted Lien, on any asset or group of assets of the Company;
(v) Guaranty;
(vi) lease or agreement under which the Company is lessee of or holds or operates any property, real or personal, owned by any other party, except for any lease of real or personal property under which the aggregate annual rental payments do not exceed $150,000;
(vii) lease or agreement under which the Company is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by the Company;
(viii) contract or group of related contracts with the same party or group of affiliated parties the performance of which involves consideration in the aggregate in excess of $150,000, other than purchase and sales orders incurred inventory in the ordinary course of business;
(ixbusiness consistent with past practices) assignment, license, indemnification or agreement with respect to any intangible property (including any Intellectual Property Rights) granted or made to the Company, or granted or made by the Company to third parties, except licenses granted by a third party to the Company involving payments of commercially available, unmodified, “off the shelf” software used solely for the internal use of the Company for an aggregate fee, royalty or other consideration for any such software or group of related software licenses of no more than $150,000200,000 individually or $500,000 in the aggregate, except pursuant (iv) all bonds, debentures, notes, loans, credit or loan agreements or commitments, mortgages, indentures or guarantees or other agreements or contracts relating to the Company’s standard form borrowing of customer agreement money, in the form delivered to Buyer;
(x) contract concerning the provision of co-location and related services to the Company, which services are used to fulfill obligations to provide software and data hosting services to customers;
(xi) contract pursuant to which (i) Company Intellectual Property Rights owned by a third party are actually embedded in Company Software, or (ii) Intellectual Property Rights owned by a third party for development tools are used to develop Company Software;
(xii) warranty agreement with respect to its services rendered or its products sold or leased, except pursuant to the Company’s standard form of customer agreement in the form delivered to Buyer;
(xiii) agreement under which it has granted any Person any registration rights (including demand or piggyback registration rights);
(xiv) sales, distribution, manufacturing, supply or franchise agreement;
(xv) agreement with a term of more than six (6) months which is not terminable by the Company upon less than thirty (30) days’ notice without penalty and involves a consideration each case individually involving remaining principal amounts in excess of $150,000 annually;
200,000, (xviv) contract regarding votingagreements with unions, transfer (vi) independent contractor agreements and leased or other arrangements related to temporary employee agreements involving in each case individually aggregate annual payments of more than $75,000 or which are not terminable upon less than 30 days' notice, (vii) leases of any real property involving in each case individually annual rent of $75,000 or more or leases of personal property involving in each case individually annual rent of $50,000 or more, (viii) agreements with copackers, manufacturers, suppliers and trade partners, in each case involving individually aggregate annual payments made or received by the Company’s Capital Stock or warrantsCompany and its Subsidiaries of more than $25,000, options or other rights to acquire (ix) all agreements with bottlers and distributors and all franchise and licensing agreements involving in each case individually aggregate annual payments of more than $25,000, (x) any of Capital Stock of the Company, except pursuant to the Company’s standard form of option agreement in the form delivered to Buyer;
(xvii) contract or agreement regarding any indemnification provided to for the granting or by the Companyreceiving of a license or sublicense or arrangement (other than agreements or licenses for standard, including any contract regarding any indemnification provided with respect to Environmental packaged software products and Safety Requirements, except pursuant other than licenses to the Company’s standard form Company or any Subsidiary involving in each case individually annual payments of customer agreement less than $75,000) under which any person is obligated to pay or has the right to receive a royalty, license fee or similar payment, and (xi) all other contracts, agreements or commitments individually involving in each case individually payments made by or to the form delivered to Buyer;
(xviii) contract Company or agreement prohibiting it from freely engaging in any business or competing anywhere in the world; or
(xix) any other agreement which is material to its operations and business prospects or involves a consideration in excess Subsidiary of $150,000 annually. To the extent applicable250,000 or more (individually, the a "Material Contracts identified on Schedule 5.11 of the Disclosure Schedule are separately identified by type of agreementContract" and collectively, "Material Contracts"). The description Company has delivered or made available to Parent true, correct and complete copies of all Material Contracts identified on Schedule 5.11 of the Disclosure Schedule clearly identify Contracts, including all amendments, waivers and other modifications to such agreementsamendments thereto.
(b) All of the contractsThe Material Contracts are legal, leases, agreements and instruments set forth or required to be set forth on Schedule 5.11(b) of the Disclosure Schedule are valid, binding and enforceable against the Company, and to the Company’s knowledge, against the other party thereto, in accordance with their respective terms, terms with respect to the Company and shall be in full force and effect without penalty in accordance with their terms upon consummation to the knowledge of the transactions contemplated herebyCompany and its Subsidiaries with respect to each other party to any of such Material Contracts, except, in each case, to the extent that enforcement of rights and remedies created by any Material Contracts are subject to (i) laws bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general application relating related to bankruptcy, insolvency or affecting creditors' rights and the relief to general equity principles. There are no existing material defaults or breaches of debtors, and (ii) rules of law governing specific performance, injunctive relief and other equitable remedies. Except as set forth on Schedule 5.11(b) of the Disclosure Schedule, (i) the Company has performed, in all material respects, all obligations required to be performed by it and is not in default under or in breach of nor, as of the date hereof, in receipt of any claim of default or breach under any Material Contract or instrument to which the Company is a party; (ii) no event has occurred which with the passage of time or the giving of notice or both would result in a default, breach or event of noncompliance by the Company under any Material Contracts Contract (or instrument events or conditions which, with notice or lapse of time or both would constitute a material default or breach) and, to which the knowledge of the Company is and its Subsidiaries, there are no such material defaults (or events or conditions which, with notice or lapse of time or both, would constitute a party; (iiimaterial default or breach) with respect to any third party to any Material Contract. The Company and its Subsidiaries have no knowledge of any pending or threatened bankruptcy, insolvency or similar proceeding with respect to any party to any of such agreements. Section 4.13 of the Company has no present expectation Disclosure Letter identifies each Material Contract set forth therein that requires the consent of or intention of not fully performing all such obligations; (iv) no partially-filled or unfilled customer purchase order or sales order is subject notice to cancellation or any other modification by the other party thereto to avoid any breach, default or is subject to any penaltyviolation of such contract, right of set-off agreement or other charge by instrument in connection with the other party thereto for late performance or delivery; and (v) as of the date hereof the Company has no knowledge of any breach or anticipated breach by the other parties to any Material Contracts, lease, agreement, instrument or commitment to which they are parties. The Company is not a party to any Material Contracts the performance of which could reasonably be expected to have a Material Adverse Effect. There are no renegotiations of, attempts or requests to renegotiate or outstanding rights to renegotiate, any terms of any of the Material Contracts on the part of the Companytransactions contemplated hereby.
(c) Buyer’s counsel has been supplied The calculations of allowance for product returns for use in connection with a true and correct copy of each the preparation of the Material Contracts which are referred Company Financial Statements contained in the SEC Reports conformed to on Schedule 5.11 GAAP. Set forth in Section 4.13 of the Company Disclosure Schedule, together with all amendments, waivers or other changes theretoLetter is a description of the Company's policy regarding product returns.
Appears in 1 contract
Sources: Merger Agreement (Odwalla Inc)