Contracts and Commitments. (a) Neither the Company nor any of its Subsidiaries are a party to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations. (b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. (ai) Neither Schedule 5.12(a) sets forth a list (by each applicable subsection referenced below in this Section 5.12(a)) of all of the following contracts to which the Company nor any of its Subsidiaries are Group is a party to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under by which any of them or their respective properties or assets is bound by as of the Company or its Subsidiaries has made advances or loans to another Person date hereof, excluding, in excess of one hundred thousand dollars $100,000each case, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier (y) contracts under which no member of the Company Group will have liability after Closing and (z) insurance policies (such contracts that are, or that are required to be be, listed on Schedule 5.22; 5.12(a) collectively, the “Material Contracts”):
(xvii1) material Contract any contract that involves non-cancelable commitments to make capital expenditures in excess of $25,000 annually;
(2) any contract with a Governmental Body; Top Customer or a Top Supplier;
(xviii3) Contracts pursuant to which any contract that requires payments by any member of the Company Group equal to more than $50,000 in any calendar year that is not terminable upon 30 or fewer days’ prior written notice by such Company Group member;
(4) any contract for the purchase of its Subsidiaries grants to a third partymaterials, supplies or a third party grants to services involving payment of more than $25,000 in the case of any single contract or, in the case of all such contracts, annual payments of more than $50,000;
(5) any contract with any sales representatives, distributor or franchisee of the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars $10,000;
($50,0006) per annumany contract constituting a take-or-pay contract or keepwell agreement;
(7) any contract providing for any merger, acquisition or disposition transaction involving any Person or any business unit or division thereof, or any other than assets or liabilities that are material to the Company, including any contract under which, after the Closing, the Company Group will have a continuing material obligation with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation;
(8) any contract establishing any joint ventures, strategic alliance, partnership, sharing of profit arrangement, minority equity investments or similar arrangement;
(9) any contract evidencing Indebtedness;
(10) any contract (A) Contracts for relating to the license licensing of commercially availableIntellectual Property by the Company Group (whether as licensee or licensor) that is material to the Company Group or involves consideration in excess of $50,000, off-the-shelf software or and (B) Contracts affecting the Company Group’s ability to use, enforce, or disclose any Intellectual Property (excluding in each case, (i) licenses for unmodified, commercial off the shelf computer software that are generally available on nondiscriminatory pricing terms with an aggregate license fee of less than $75,000 and (ii) non-exclusive license of Intellectual Property licenses by the Company Group (whether as licensee or licensor) in the ordinary course of business; );
(xix11) except in connection with the transactions contemplated by this Agreement (includingany contract that limits, for the avoidance of doubtor purports to limit, the Pre-Closing Restructuring), Contracts relating ability of the Company Group or any of its controlled Affiliates to the acquisition engage or disposition (whether by merger, sale compete in any line of equity, sale of assets business 38 or otherwise) of with any Person or line in any geographic area or during any period of time, or that contains a covenant not to compete applicable to the Company Group or any of its controlled Affiliates;
(12) any contract that contains “most favored nations” pricing terms or grants to any customer, supplier or vendor any right of first offer or right of first refusal or exclusivity or any similar requirement or that restricts the right of any member of the Company Group to sell to or purchase from any Person;
(13) any contract that contains any “non-solicitation”, “no hire” or similar provisions which materially restrict the Company Group or any of its controlled Affiliates from soliciting, hiring, engaging, retaining or employing any other Person’s current or former employees;
(14) any contract that requires a consent to or otherwise contains a provision relating to a “change of control,” the failure of which to obtain would prohibit or delay the consummation of, the Transactions;
(15) any contract pursuant to which any member of the Company Group is the lessee or lessor of, or holds, uses, or makes available for use to any Person (other than the Company Group members), (A) any real property or (B) any tangible personal property and, in the case of each of clauses (A) and (B), that involves an aggregate future or potential liability or receivable, as the case may be, in excess of $50,000;
(16) any contract for the sale or purchase of any real property or tangible personal property in an amount in excess of $50,000;
(17) any contract providing for indemnification to or from any Person with respect to liabilities relating to any current or former business of any member of the Company Group or any of their predecessors, excluding indemnification provided by the Company Group to customers in the ordinary course of business;
(18) any contract with any labor union or any collective bargaining agreement to which any member of the Company Group is a party;
(19) any hedging, futures, options or other derivative contract;
(20) any contract for the purchase of any debt or equity security or other ownership interest of any Person, or for the issuance of any debt or equity security or other ownership interest, or the conversion of any obligation, instrument or security into debt or equity securities or other ownership interests of, any member of the Company Group;
(21) any contract that results in any Person holding a power of attorney from any member of the Company Group that relates to the Company Group or its business;
(22) any settlement, conciliation or similar agreement entered into since the Original Acquisition Lookback Date (and including the transactions consummated or under which there are continuing obligations or liabilities on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager part of the Company Group;
(23) any contract for the disposition of any material portion of the assets or business of the Company Group (other than sales of products in the ordinary course of business or disposal of inventory or components that are damaged or obsolete) or for the acquisition by the Company Group of the assets or business of any other Person (other than purchases of inventory or components in the ordinary course of business); 39
(24) any contract with any Related Party of the Company Group;
(25) any contract pursuant to which any Person (other than employees of the Company Group) has authored, created, conceived, developed or reduced to practice any material Intellectual Property rights for, on behalf of or under the direction or supervision of the Company Group;
(26) any contract with an employee or independent contractor of the Company Group that (A) involves annual compensation (including salary, bonus and commissions) payable by the Company Group to any employee or independent contractor in excess of $100,000 or (B) is not terminable by the Company Group upon less than 30 days’ notice (or such longer notice as required by Law) without payment of severance, termination or similar benefits;
(27) any contract with a Governmental Body; and
(28) any commitment or arrangement to enter into any of its Subsidiaries has material ongoing obligationsthe foregoing.
(bii) Each Material Contract is in full force and effecteffect and will remain in full force and effect following the Closing, and is a legal, valid and binding obligation of the Company or a Subsidiary member of the Company Group which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equitythe Bankruptcy Exceptions. Neither the Company nor any Subsidiary No member of the Company Group (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, that with or without the lapse of time or the giving of notice or both, both would constitute a material breach or material default on the part of any member of the Company or any Subsidiary Group or, to the knowledge of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, other party under any Material Contract or of any material right or obligation thereunderContract. No party to any Material Contract has exercised any termination rights with respect thereto, thereto and no party has given written notice of or otherwise indicated in writing any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing)Contract, together with including all amendments, modifications or supplements thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Forum Energy Technologies, Inc.)
Contracts and Commitments. Except (ax) Neither as set forth on the attached Contracts Schedule and (y) for agreements entered into by the Company or its Subsidiaries after the date hereof in accordance with Section 6.01, neither the Company nor any of its Subsidiaries are a is party to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Personcollective bargaining agreement; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) written bonus, pension, employee profit sharing, retirement or other form of deferred compensation plan, other than as set forth described in Section 5.14(a) 4.12 or the Disclosure Schedules relating theretothereto pursuant to which the Company has obligations greater than $500,000 per annum; (viiiiii) stock equity purchase, stock option or similar plan; (ixiv) Contract contract for the employment of (a) any officer, and (b) any individual employee or other person on a full-time or consulting basis (A) providing for base salary compensation in excess of one hundred thousand dollars ($100,000) 500,000 per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xiv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Lien, except for Permitted Lien) Liens, on any material portion of the assets of the Company or any of and its Subsidiaries; (xiivi) guaranty of any obligation for borrowed money or other material guaranty; (xiiivii) lease contract or agreement under group of related contracts with the same party for the purchase of products or services which it is lessee of, provided for payments by the Company or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments its Subsidiaries in excess of three hundred $750,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet; (viii) agreements relating to any completed material business acquisition by the Company or its Subsidiaries within the last two (2) years; (ix) contract (other than confidentiality and fifty thousand dollars ($350,000) non-solicitation agreements entered into in the aggregateordinary course) which places any material limitation on the Company or its Subsidiaries from freely engaging in business anywhere in the world; (xvix) any agreement that provides for or obligates the Company or any of its Subsidiaries to indemnify, hold harmless or defend any Person (including any officers, directors, members, managers, partners, employees or agents of the Company or any of its Subsidiaries), other than purchase orders Contracts entered into in the ordinary course of business, business the primary purpose of which is not related to the indemnification of any Contracts Person; (xi) any contracts or orders with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants Entity for payments to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration Subsidiary in excess of fifty thousand dollars ($50,000) 500,000 per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software ; or (Bxii) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts any management agreement or similar agreement relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) management of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which Facilities (the Company or any of its Subsidiaries has material ongoing obligations“Existing Management Agreements”).
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Neither Section 4.20 of the Company nor Disclosure Schedule lists the following Contracts (other than any Employee Benefit Plan or Leases) to which the Company or any of its Subsidiaries are is a party to any: party, in each case, as of the date of this Agreement (collectively, the “Material Contracts”):
(i) any Contract containing noninvolving payments by the Company or any of its Subsidiaries of more than $500,000 in the last twelve months prior to the date of this Agreement (other than Contracts that are terminable by the Company or the applicable Subsidiary without penalty or with de minimis penalty and on ninety (90) days’ notice or less);
(ii) any Contract involving payments to the Company or any of its Subsidiaries of more than $500,000 in the last twelve months prior to the date of this Agreement;
(iii) any collective bargaining agreement or similar labor-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport related Contract with any labor union relating to restrict employees of the Company’s Company or any of its Subsidiaries’ business activity ;
(iv) Contracts relating to any acquisition or limit disposition of any Person, equity interests in any Person or any assets (other than purchases and sales of Retail Installment Sale Contracts or sales of obsolete assets in each case in the freedom Ordinary Course of Business) made by the Company or its Subsidiaries, with material obligations remaining to be performed or material liabilities continuing after the date of this Agreement (including any outstanding payment obligations, indemnity claims or restrictive covenant obligations) or that were entered into during the two (2) years prior to the date of this Agreement, other than this Agreement and Related Documents;
(v) any Contract (A) relating to indebtedness for borrowed money or any swap or hedging transaction or other derivative agreement, including (x) any warehouse lines of credit or other Contracts under which the Company or any Subsidiary has borrowed any money or issued any note, indenture or other evidence of indebtedness (or guaranteed the indebtedness of others), or (y) any Contract that contains a material restriction on the ability of the Company or any Subsidiary to incur indebtedness for borrowed money, (B) that restricts the payment of dividends or distributions or (C) that grants a Lien (other than a Permitted Lien) or restricts the granting of Liens on any material properties of the Company or its Subsidiaries;
(vi) any Contract that (A) restricts or purports to restrict in any material respect the ability of the Company or any of its Subsidiaries to engage compete in any line of business or to compete with geographic area or during any Person; (ii) Contract under which any period of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions time or (B) any exclusive rightsprovides the counterparty with “most favored nation” (including with respect to pricing), rights exclusivity, “take or pay” requirements, minimum purchase requirements, right of first refusal, rights of first negotiation offer or other refusal or similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; ;
(vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) any Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants could be required to repurchase Retail Installment Sale Contracts sold to third parties or provide indemnification in connection with such sales;
(viii) any Contract or commitment for capital expenditures in excess of $500,000 in each of the current or future fiscal years;
(ix) any Contract providing for servicing of (or acting as custodian for) Retail Installment Sales Contracts (or the receivables thereunder) that are sold to a third partySpecified Entity;
(x) any joint venture, strategic alliance, partnership or similar agreements or arrangements;
(xi) any Contracts relating to a third party grants settlement or similar agreement (A) with any Governmental Authority or (B) with any Person (x) which would require the Company or any of its Subsidiaries to pay more than $100,000 after the date of this Agreement or (y) which imposes material continuing obligations on the Company or any of its Subsidiaries; and
(xii) any material Contract relating to the license, whether to or from the Company or any of its Subsidiaries, a license to any or use or exploitation of Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annumIT Assets or data, other than (Ai) non-exclusive licenses (1) entered into in the Ordinary Course of Business or (2) to “off-the-shelf” or otherwise commercially available software with annual fees of less than $100,000, and (ii) Contracts for the license acquisition, disposition or lease of commercially availableIT Assets (other than Intellectual Property) with annual fees of less than $100,000.
(b) Except for any Material Contract that will terminate upon the expiration of the stated term thereof prior to the Closing Date and except for matters which, off-the-shelf software individually or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course aggregate, are not and would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole, (i) each Material Contract is valid, binding and enforceable in accordance with its respective terms, except to the extent limited by the Equitable Exceptions or any Pandemic Measure, against the Company or its Subsidiaries, as applicable, and to the Company’s Knowledge, each other party thereto; and (ii) neither the Company nor any of business; its Subsidiaries is (xixwith or without notice or lapse of time, or both) except in connection breach or default under any such Material Contract and, to the Company’s Knowledge, no other party to any such Material Contract is (with or without notice or lapse of time, or both) in breach or default thereunder and no event has occurred that (with or without notice or lapse of time or both) would constitute such a breach, default or violation, except, in the case of clause (i), with respect to any Material Contract that expires by its terms (as in effect as of the date of this Agreement) or which is terminated in accordance with the transactions contemplated terms thereof by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which in the Ordinary Course of Business. None of the Company or any of its Subsidiaries has received any written notice or written claim of a material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company breach or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given . True and complete copies of all Material Contracts have been provided to any other party thereto notice alleging that such a material breach or material default has occurred, and, Parent prior to the knowledge date of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretothis Agreement.
Appears in 1 contract
Sources: Merger Agreement (Vroom, Inc.)
Contracts and Commitments. (a) Except as set forth in Schedule 4.13, neither the Company nor the Company Subsidiaries is a party to or bound by any of the following:
(i) any Contract that provides for post-employment or post-consulting liabilities or obligations of the Company or any Company Subsidiary, including severance pay;
(ii) any Contract or Company Employee Benefit Plan under which payments or obligations of the Company or any Company Subsidiary will be increased, accelerated or vested by the occurrence (whether alone or in conjunction with any other event) of any of the Transactions, or under which the value of the payments or obligations will be calculated on the basis of any of the transactions contemplated by this Agreement, whether pursuant to a change in control or otherwise;
(iii) any Contract currently in force relating to the disposition or acquisition of assets where the fair market value of such assets exceeds $10,000, in each case other than inventory sold in the ordinary course of business and consistent with past practice;
(iv) any Contract relating to an ownership interest in any corporation, partnership, joint venture or other business enterprise or Person, excluding wholly owned Company Subsidiaries;
(v) any Contract for the purchase of materials, supplies, equipment or services, under which the aggregate payments made to one party or group of related parties during the past twelve (12) months exceeded, or for the following twelve (12) months is expected by the Company to exceed, $75,000;
(vi) any Contract for the licensing of Software or for the provision of hardware or services, in each case by the Company or any of the Company Subsidiaries, excluding licenses covering “off-the-shelf” or “shrink wrap” products and technology;
(vii) any Contract relating to the guarantee (whether absolute or contingent) by the Company or any of the Company Subsidiaries of (A) the performance of any other Person (other than the Company or a wholly owned Company Subsidiary) or (B) the whole or any part of the indebtedness or liabilities of any other Person (other than the Company or a wholly owned Company Subsidiary);
(viii) any Contract relating to the indemnification of officers, directors, managers or agents;
(ix) any Contract containing an obligation to indemnify any Person in an amount that exceeds the cash consideration actually received by the Company or any Company Subsidiary pursuant to such Contract;
(x) any power of attorney authorizing the incurrence of an obligation on the part of the Company or the Company Subsidiaries;
(xi) any Contract which limits or restricts (A) where the Company or any of the Company Subsidiaries may conduct business, (B) the type or lines of business (current or future) in which the Company or any of the Company Subsidiaries may engage or (C) any acquisition of assets or stock (tangible or intangible) by the Company or any of the Company Subsidiaries;
(xii) any Contract under which the aggregate payments or receipts for the past twelve (12) months exceeded, or for the following twelve (12) months is expected by the Company to exceed, $75,000;
(xiii) any Contract for the borrowing or lending of money, or the availability of credit (except credit extended by the Company or any of the Company Subsidiaries to customers in the ordinary course of business and consistent with past practice);
(xiv) any Contract relating to any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the exchange of currency;
(xv) any collective bargaining agreements;
(xvi) any material Contract or arrangement which relates to matters not within the ordinary course of the business or not entirely on an arm’s length basis;
(xvii) any Contract or arrangement between the Company or any of the Company Subsidiaries, on the one hand, and any of the Company’s directors or any Person connected with such director, on the other hand; or
(xviii) any Contract relating to the employment of individuals. Each Contract of the type described in this Section 4.13(a) and in existence as of the date hereof is listed in Schedule 4.13 and referred to herein as a “Company Contract”.
(b) An accurate and complete copy, in all material respects, of each Company Contract (including all amendments thereto) is available in the Data Room.
(c) Neither the Company nor any of its Subsidiaries are a party to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, andnor, to the knowledge Knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto to a Company Contract, is in breach, violation or default under, or has received written notice alleging that such a material breach it has breached, violated or material default has occurred, anddefaulted under (nor, to the knowledge Knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No has any event has occurred which wouldwhich, with or without the lapse passage of time or the giving of notice or both, would constitute such a material breach breach, violation or material default under), any warranty or condition of any Company Contract. Neither the Company nor any of the Company Subsidiaries has failed to comply with any applicable warranty or other contractual commitment in a Company Contract relating to the use, functionality or performance of any Company Software or any Company Product containing, supported, hosted or provisioned by, or used in conjunction with any Company Software.
(d) Each Company Contract is a valid, binding and enforceable obligation of the Company and any applicable Company Subsidiary and, to the Knowledge of the Company, the other party or permit any early terminationparties thereto in accordance with its terms and is in full force and effect, modificationin each case except to the extent enforcement may be limited by applicable bankruptcy, acceleration insolvency, reorganization, moratorium or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiariesother laws affecting creditors’ rights generally or obligations underby general equitable principles or by principles of good faith and fair dealing (regardless of whether enforcement is sought in equity or at law) (collectively, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. “Creditor’s Rights”).
(e) Neither the Company, nor any Subsidiary of the Companyits present directors, has delivered notice officers, nor any Person connected with a present director or officer, now has, either directly or indirectly, an interest in nor agents, consultants or employees, now has, either directly or indirectly, a material interest in:
(i) any entity which supplies or supplied material services or products to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or purchases or purchased from the Company any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 material goods or other force majeure events. The services, or otherwise does or did material business with the Company; or
(ii) any Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoContract.
Appears in 1 contract
Contracts and Commitments. (a) Neither Except as set forth in Schedule 4.12(a), neither the Company nor any Subsidiary of its Subsidiaries are the Company is a party to any: to:
(i) Contract containing agreements to which a physician or referral source is a party;
(ii) agreements with health maintenance organizations, preferred provider organizations, school districts, alternative delivery systems or other payors;
(iii) corporate integrity agreements, settlement and other agreements with Governmental Authorities;
(iv) agreements which contain non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to which restrict the Company’s activities of the Company or any Subsidiary in any geographic area;
(v) agreements in which the Company or any Subsidiary manages the operations of its another party, and any agreement in which the Company or any Subsidiary has material management services provided to it;
(vi) joint venture or partnership agreements;
(vii) (A) other employment contracts, independent contractor agreements, consulting agreements and equivalent contracts, agreements or commitments for the employment or engagement by the Company or any Subsidiary of any employee or agent contemplating an annual payment of cash compensation in excess of $150,000 for such employee or agent, and (B) other contracts, agreements or other commitments contemplating bonus, severance or similar compensation awards to employees or agents;
(viii) contracts or commitments affecting ownership of, title to, use of or any interest in the Real Property;
(ix) patent licensing agreements or any other agreements, licenses or commitments with respect to patents, patent applications, trademarks, trade names, service marks, technical assistance, copyrights, or other intellectual property affecting the facilities operated by the Company or the Subsidiaries’ business activity ;
(x) any agreement with another Person materially limiting or limit restricting the freedom ability of the Company or any Subsidiary of the Company to enter into or engage in any market or line of business;
(xi) any agreement with any director of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; Subsidiaries;
(ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (Bxii) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment sale of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) Subsidiaries other than purchase orders entered into in the ordinary course of business, ;
(xiii) any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts agreement relating to the acquisition incurrence, assumption, surety or disposition (whether by merger, sale of equity, sale of assets or otherwise) guarantee of any Person or line of business entered into since the Original Acquisition Date indebtedness (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition excluding any agreement to guarantee lease payments);
(whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xxxiv) any settlement material agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to under which the Company or any of its Subsidiaries has material ongoing obligationsmade advances or loans to any other Person (which shall not include advances made to an employee of the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice);
(xv) any other contracts or commitments not identified above, whether in the ordinary course of business or not, which (A) involve future payments, performance of services or delivery of goods or materials, to or by the Company or any of its Subsidiaries in an amount exceeding $175,000 on an annual basis, or (B) have a term longer than three (3) years.
(b) Each of the contracts set forth on Schedule 4.12(a) (the “Material Contract Contracts”): (i) is in full force and effect, and is a the legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party theretoand/or its Subsidiaries, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its termsterms except, in each case, subject to as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforcement is sought in a proceeding at law or in equity); (ii) has been made available to general principles Parent by the Company in true and accurate form, including all amendments thereto and all related side letters; and (iii) has had all of equitythe obligations required to be performed by the Company or one or more of the Subsidiaries as of the date of this Agreement and as of the Effective Time performed in all material respects. Neither Except as set forth on Schedule 4.12(b), neither the Company nor any Subsidiary of the Subsidiaries has received notice that any act or omission by the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge one of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event Subsidiaries has occurred which wouldor failed to occur which, with or without the giving of notice, the lapse of time or the giving of notice or both, would constitute a material breach or material default of the Company or any Subsidiary of the Companyunder a Material Contract, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect and to the Company’s or any of its Subsidiaries’ rights or obligations underknowledge, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and there is no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretobasis therefor.
Appears in 1 contract
Contracts and Commitments. (a) Neither The Disclosure Schedule lists (and the Company nor has provided true and correct copies to the Buyer of) each of the following items to which either the Company or the Subsidiary is a party or to which any of its Subsidiaries their properties or other assets are a party to any: (i) Contract containing non-competition subject, except for any Contracts that may be terminated without liability or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict penalty on not more than 30 days' notice and any Contracts under which the Company’s or any of its Subsidiaries’ business activity or limit the freedom executory obligation of the Company or the Subsidiary involves an individual amount of less than $10,000 (unless a different amount is specified below):
(i) Contracts with any present or former stockholder, director, officer, employee, partner or consultants;
(ii) Contracts for the future purchase of, or payment for, supplies or products, or for the performance of its Subsidiaries services by a third party, in excess of $20,000 in any individual case;
(iii) Contracts to engage sell or supply products or to perform services, in excess of $10,000 in any individual case;
(iv) notes, debentures, bonds, conditional sale agreements, equipment trust agreements, letter of credit agreements, reimbursement agreements, loan agreements or other Contracts for the borrowing or lending of money, agreements or arrangements for a line of credit or guarantee, pledge or undertaking in any manner (including guarantees of lease obligations) whatsoever of the indebtedness of any other person or entity;
(v) Contracts limiting or restraining the Company or the Subsidiary from engaging or competing in any line of business or any geographical area;
(vi) Contracts relating to compete with any Person; (ii) Contract under which material license, franchise or distributorship, or copyright, or to any ideas, technical assistance or other know-how of or used by the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses the Subsidiary;
(vii) Collective bargaining agreements or other customary out-of-pocket expenses contracts with labor unions;
(viii) Agreements relating to severance arrangements, retirement benefits, deferred compensation or termination of employment; and
(ix) Contracts not made in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance business that individually involve the payment or similar agreements or arrangements; (v) Contract (other receipt of more than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations10,000.
(b) Each Material Contract is in full force and effectNeither the Company, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, andnor, to the knowledge Company's knowledge, any other party is in default under, nor to the Company's knowledge, has any event occurred that (with or without the giving of notice or lapse of time, or both) would constitute a default under any of the CompanyContracts, of which default could reasonably be expected to have a material adverse effect on the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equityBusiness Condition. Neither the Company nor the Subsidiary has received any Subsidiary of the Company (as applicable) is in material default under communication from, or given any Material Contractcommunication to, no party thereto has given to any other party thereto notice alleging indicating that such a material breach or material default has occurred, and, to the knowledge of the Company, the Subsidiary or such other party to each of party, as the Material Contracts case may be, is not in material default currently or material breach thereunder. No event has occurred which would, with or without by the lapse of time or the giving of notice or bothwill be in default under any Contract, constitute which default could reasonably be expected to have a material breach or material default of adverse effect on the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoBusiness Condition.
Appears in 1 contract
Contracts and Commitments. (ai) Neither Section 3.1(s)(i) of the Disclosure Schedule contains a true, complete and correct list of the following Contracts to which any Acquired Company nor is a party or by which any of its Subsidiaries are assets or properties is bound (each Contract so listed or required to be so listed, together with each IP Agreement, being a party “Material Contract”):
(A) any Contract relating to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or acquisition by any Acquired Company of its Subsidiaries’ business activity or limit the freedom any assets of the Company or any of its Subsidiaries to engage in any line of a substantial nature, operating business or to compete with capital stock of any other Person; (ii) Contract under which any of , the Company or its Subsidiaries has made advances or loans to another Person participation in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) a joint venture, partnership, strategic alliance or similar agreements arrangement with any other Person or arrangementsthe making of any other investment in any other Person;
(B) any Contract (or group of related Contracts) for capital expenditures involving payments by any Acquired Company in excess of $500,000 over the life of such Contract (or group of related Contracts);
(C) (1) any Contract (or group of related Contracts) pursuant to which any Acquired Company purchases, leases or licenses materials, supplies, equipment or other personal property or services that involves or would reasonably be expected to involve more than $500,000 over the life of such Contract (or group of related Contracts) and (2) any Contract with any Material Supplier;
(1) any Contract (or group of related Contracts) with any customer that involves or would reasonably be expected to involve more than $500,000 over the life of such Contract (or group of related Contracts) and (2) any Contract with any Material Customer;
(E) any Real Property Lease;
(F) any Contract under which any Acquired Company has created, incurred, assumed or guaranteed any Indebtedness, or under which any Acquired Company has imposed or become subject to any Encumbrance on any of its assets, tangible or intangible;
(G) any Contract containing non-disclosure or confidentiality obligations binding on any Acquired Company;
(H) any Contract that (1) limits the freedom of any Acquired Company to compete in any line of business or with any Person or in any area (including any agreement that contains any non-competition, non-interference or non-solicit obligations); (v2) Contract limits the freedom of any Acquired Company to solicit or hire any employee or independent contractor of any other Person; (other than Franchise Agreements3) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi4) grants “most favored nation” or similar rights to any Person; or (5) otherwise prohibits or limits or would reasonably be expected to prohibit or limit any acquisition or transfer of any properties or assets of the Acquired Companies or the conduct of their business (including the Business) as currently conducted and as currently proposed to be conducted;
(I) any Contract with either Seller, Guarantor or any other Affiliate of the Acquired Companies or any Affiliate of either Seller;
(J) any collective bargaining agreement or Contract with agreement;
(K) any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on or with any employee containing non-competition, non-interference or non-solicit obligations;
(L) any Contract with any independent contractor, consultant or other individual pursuant to which such individual acts as an independent contractor, consultant, or in a full-time similar capacity for any Acquired Company;
(M) any Contract that provides for any severance benefits, retention payments, termination payments, change of control payments or consulting basis similar Liabilities;
(N) any Contract under which any Acquired Company has made any advance or loan to any other Person (including to any of the Acquired Companies’ equityholders, officers, directors, managers or employees);
(O) any Contract under which a default or termination would have a Material Adverse Effect;
(P) any settlement Contract;
(Q) any Contract with any Governmental Authority; and
(R) any Contract pursuant to which any Acquired Company grants any Person power of attorney.
(ii) Seller has delivered to Buyer a true, complete and correct copy of each written Material Contract (including all amendments, exhibits, schedules, statements of work and other material supplements thereto) and a written summary setting forth the material terms and conditions of each oral Material Contract. With respect to each Material Contract: (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material such Contract is legal, valid, binding, enforceable and in full force and effect; (B) neither the Acquired Companies, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, andnor, to the knowledge of the CompanySeller’s Knowledge, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material is in breach or material default has occurreddefault, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No and no event has occurred which would, that with notice or without the lapse of time or the giving of notice or both, both would constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, modification or acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, under such Contract; and (C) no party has given written notice repudiated any provision of any material dispute with respect such Contract or threatened to any Material terminate such Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Neither Except as expressly contemplated by this Agreement or as set forth on Schedule 4.15 attached hereto, the Company nor any of its Subsidiaries are is not a party to any: or bound by any written or oral:
(i) Contract containing non-competition pension, profit sharing, stock option, employee stock purchase or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants other plan or otherwise containing covenants that purport arrangement providing for deferred or other compensation to restrict the Company’s its current or former directors, officers or employees or any of its Subsidiaries’ business activity other employee benefit plan, arrangement or limit the freedom of the Company practice, whether formal or any of its Subsidiaries to engage in any line of business or to compete with any Person; informal;
(ii) Contract under which 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;
(iii) management agreement or contract for the employment of the Company any officer, individual employee or its Subsidiaries has made advances other Person on a full-time, part-time, consulting or loans to another Person other basis (A) providing annual cash or other compensation in excess of one hundred thousand dollars $100,000250,000, (B) providing for the payment of any cash or other compensation or benefits upon the consummation of the transactions contemplated hereby or (C) otherwise restricting its ability to terminate the employment of any employee at anytime for any lawful reason or for no reason without penalty or liability;
(iv) contract or agreement involving any Governmental Agency involving more than $200,000 other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; ;
(v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of borrowed money or to other Indebtedness or the mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion material asset or material group of the assets of the Company or any letter of its Subsidiaries; credit arrangements;
(xiivi) guaranty guarantee, other than endorsements made for collection in the ordinary course of any obligation for borrowed money or other material guaranty; business consistent with past custom and practice;
(xiiivii) lease or agreement under which it the Company is (A) lessee of, of or holds or operates any personal property property, owned by any other party, except for any lease of personal property under which the aggregate annual rental exceeds one hundred thousand dollars payments do not exceed $1,000,000 or ($100,000); (xivB) lease or agreement under which it is lessor of or permits any third-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 purchase or sale of raw materials, commodities, supplies, products, equipment or other personal property or services under which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments undelivered balance since the Most Recent Audited Balance Sheet Date of such products and services has a selling price in excess of three hundred $1,000,000;
(ix) other contract or group of related contracts with the same party or group of affiliated parties continuing over a period of more than six months from the date or dates thereof, not terminable by the Company upon 30 days' or less notice without penalty or involving more than $1,000,000;
(x) contract relating to the marketing, advertising or promotion of its products involving more than $1,000,000;
(xi) agreement under which it has granted any Person any registration rights (including, without limitation, demand and fifty thousand dollars piggyback registration rights);
($350,000xii) 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 aggregate; (xvi) world other than purchase orders entered into in the ordinary course of business;
(xiv) broker, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company agent, sales representative, sales or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, distribution agreement other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business;
(xv) power of attorney or other similar agreement or grant of agency;
(xvi) 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) except other agreement which involves a consideration in connection with excess of $1,000,000 annually, other than in the transactions contemplated by this Agreement (including, for the avoidance ordinary course of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationsbusiness.
(b) Each The Company has delivered or made available to Vista a correct and complete copy (as amended to date) of each contract, agreement, and instrument set forth on Schedule 4.15 (collectively, the "Material Contracts"). With respect to each Material Contract: (i) such Material Contract is legal, valid and binding, enforceable against the Company in accordance with the terms (except to the extent required by Creditors Rights Laws), and in full force and effect, and is a ; (ii) such Material Contract will continue to be legal, valid and binding obligation of binding, enforceable against the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its termsthe terms (except to the extent required by Creditors Rights Laws), and in full force and effect on identical terms following the consummation of the transactions contemplated hereby; (iii) to the Company's knowledge no party to such Material Contract is in breach or default of the terms thereof, and to the Company's knowledge no event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under such Material Contract; and (iv) no party to such Material Contract has repudiated any provision thereof.
(c) Except as specifically set forth in Schedule 4.15(c), the Company is not a party to any contract, agreement, instrument or understanding that contains a "change in control," "potential change in control," or similar provision, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither that would be triggered by the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretotransactions contemplated hereunder.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Aspect Communications Corp)
Contracts and Commitments. (a) Neither Schedule 5.19(a) sets forth a list of the following Contracts to which a Company nor any of its Subsidiaries are Group Member is a party to any: or by which a Company Group Member is bound and which are executory as of the date of this Agreement:
(i) Contract containing non-competition requiring the consent of, or non-the waiver by, any other Person (including any supplier, distributor, customer, licensee, licensor, insurer, investor or lender) in connection with the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby on the part of the Company;
(ii) Contract (A) restricting the development, manufacture, marketing, distribution or sale of any products or services of any Company Group Member, (B) restricting or limiting the entering into of any market or line of business by any Company Group Member, (C) restricting the ability of any Company Group Member to compete with any other Person, (D) prohibiting the transaction of business with any other Person (including any prohibition on the solicitation of business from any Person) by any Company Group Member, (excluding such covenants contained in customary non-disclosure agreementsE) covenants granting to another Person by any Company Group Member exclusive rights with respect to any goods or otherwise containing covenants services, items of Software or territory, or (F) prohibiting the solicitation by any Company Group Member of employees from any Person;
(iii) Contract which is an exclusive dealing or “take or pay” agreement;
(iv) Contract that purport contains a “most favored nation” or “most favored customer” pricing or other provision;
(v) Contract pursuant to restrict which any Company Group Member has granted, or agreed to grant, to another Person a license to the Company’s or any of its Subsidiaries’ business activity Intellectual Property, excluding (i) Contracts with Material Customers and (ii) Contracts entered into in the Ordinary Course of Business with any other customer that accounts for current annual revenue equal to or limit less than $200,000;
(vi) Contract with any Material Customers;
(vii) Contract with any Material Supplier;
(viii) Contracts pursuant to which any Company Group Member has granted, or agreed to grant (whether or not any requirement such as the freedom giving of notice, the lapse of time or the happening of any further condition, event or act has been satisfied), to another Person the right to sublicense or transfer any Software (other than Contracts to sublicense or transfer Software to a customer’s Affiliates), except for Contracts pursuant to which a Company or Group Member licenses Software to any of its Subsidiaries to engage customers in any line the Ordinary Course of business or to compete with any Person; Business;
(iiix) each (A) Contract under disclosed on Schedule 5.16(o) and (B) each Contract currently in effect pursuant to which any Company Group Member has placed into escrow for the benefit of another Person the source code to any Software or any other technology owned by any Company Group Member;
(x) marketing, sales or advertising Contract providing for the payments or fees payable by the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to 25,000 in any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; 12 month period;
(iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ixxi) Contract for the employment future purchase or price of raw materials, supplies or equipment which involves or would reasonably be expected to involve the payment by the Company of more than $50,000 in any individual on a full-time 12 month period or consulting basis which contains minimum purchase conditions or requirements;
(Axii) providing for base compensation Contract to make any capital expenditures or capital additions or improvements with commitment in excess of one hundred thousand dollars $50,000 in the next 12 months or in excess of $150,000 in the aggregate over the term of such Contract;
($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (xxiii) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing storage or warehousing of money any inventory or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets products of the Company or any of its Subsidiaries; , or the charter or purchase of transportation or shipping services;
(xiixiv) guaranty management, employment, consulting, severance or other similar type of Contract providing for payments of greater than $50,000, except as set forth in Schedule 5.15(a) or as contemplated by Schedule 7.1;
(xv) Contract providing for the indemnification of any obligation for borrowed money current or other material guaranty; former director, officer or employee of any Company Group Member;
(xiiixvi) lease Contract (A) relating to the incurrence of any Indebtedness by or agreement under which it is lessee on behalf of, or holds the extension of credit to, any Company Group Member, (B) evidencing any Indebtedness of any Company Group Member or operates any personal property owned the guarantee by any Company Group Member of the Indebtedness of any other partyPerson, for which or (C) relating to the annual rental exceeds one hundred thousand dollars deferred purchase price of property (whether incurred, assumed, guaranteed or secured by any asset) of more than $100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; 50,000;
(xvii) mortgage, pledge, security agreement, deed of trust, loan agreement, credit agreement, indenture, conditional sale or title retention agreement, equipment financing obligation or other instrument or agreement granting an Encumbrance upon any of the material Contract with a Governmental Body; properties or assets of the Company Group Members;
(xviii) Contracts pursuant Contract under which any Company Group Member has agreed to which the Company or indemnify any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars Person ($50,000) per annum, other than (A) Contracts for the license of commercially availablewith customers, off-the-shelf software partners or (B) Contracts for the non-exclusive license of Intellectual Property suppliers in the ordinary course Ordinary Course of business; Business);
(xix) except in connection with Contract establishing or creating any partnership, joint venture, limited liability company or limited liability partnership;
(xx) Contract which relates to the transactions contemplated acquisition by this Agreement any Company Group Member of any of the capital stock of another Person or substantial portion of the assets of another Person;
(including, xxi) Contract which provides for the avoidance sale or lease after the date hereof of doubt, any of the Pre-Closing Restructuring), Contracts relating material assets of any Company Group Member other than in the Ordinary Course of Business;
(xxii) Contract that relates to the acquisition or disposition of any business (whether by merger, sale of equitystock sale, sale of assets or otherwise);
(xxiii) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company Contract pursuant to which any Company Group Member has agreed to settle any Proceeding since the Sellers’ Acquisition Date; and
(xxiv) Contracts not listed above that requires aggregate future payments by the Company of $50,000 or any more and relates to the operation of its Subsidiaries has material ongoing obligationsthe business of the Company. Contracts required to be disclosed on Schedule 5.19(a) pursuant to this Section 5.19(a) are hereinafter referred to as “Material Contracts.” The information on Schedule 5.19(a) shall reasonably indicate which of clauses (i) through (xxiv) applies to the disclosed Contracts.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the applicable Company or a Subsidiary of the Company which Group Member(s) that are party(ies) thereto and is party thereto, and, to the knowledge of the Company, of the other parties thereto in full force and effect and enforceable against each of them in accordance with its terms, in each case, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law). No Company Group Member nor, to general principles the Company’s knowledge, any other party to any Material Contract, is in material violation of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is or in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, andnor, to the knowledge of the Company’s knowledge, the other party to each of the Material Contracts is not in material default has any event occurred or material breach thereunder. No event has occurred which wouldcircumstance or condition existed, that (with or without the notice, lapse of time or the giving of notice or both, constitute ) would reasonably be expected to (i) result in a material breach violation of or material default under any Material Contract, or (ii) give any party the right to cancel or terminate any Material Contract. As of the date hereof, no Company or Group Member has received any Subsidiary of the Companywritten notice making, or permit received any early terminationwritten threat to make, modification, acceleration any claim for damages or cancellation of, or otherwise adversely affect indemnification with respect to the Company’s Products or any performance of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect services pursuant to any Material Contract. Neither the CompanyThere have been no oral or written modifications, nor amendments or waivers with respect to of any Subsidiary of the Company, has delivered notice to or contacted terms of any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. Material Contracts.
(c) The Company has made available to the Purchaser true and correct Buyer copies of each all Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoContracts.
Appears in 1 contract
Contracts and Commitments. (a) Neither Except for contracts, commitments, plans, agreements and licenses described (without the names of any customers of the Company who are parties thereto) in Schedule 2.14(a), Schedule 2.13(b), Schedule 2.13(c) or Schedule ---------------- ---------------------------------- ----------- 2.15 of the Company Disclosure Schedule (correct and complete copies of which, ---- if written, have been made available to the Parent) and except for contracts, commitments, plans, agreements and licenses not presently in effect, neither the Company nor any of its Subsidiaries are Subsidiary is a party to any: or subject to:
(i) Contract containing non-competition any contract or non-solicitation agreement for the purchase of any commodity, material, equipment or asset, except for the Company's proposed investment in serverfarm equipment for its Comprende products and purchase orders in the ordinary course for less than $10,000 each, such orders not exceeding in the aggregate $50,000;
(excluding ii) any other contracts or agreements creating any obligations of the Company or any Subsidiary after the date of the Base Balance Sheet of $20,000 or more with respect to any such covenants contained contract or agreement, other than sales and purchase commitments in customary non-disclosure agreementsthe ordinary course of business and consistent with past practice;
(iii) covenants any contract or otherwise agreement providing for the purchase of all or substantially all of its requirements of a particular product from a supplier;
(iv) any material contract or agreement which by its terms does not terminate or is not terminable without penalty by the Company or any Subsidiary (or its successor or assign) within 90 days after the date hereof;
(v) any contract or agreement for the sale, license or lease of its products not made in the ordinary course of business and consistent with past practice;
(vi) any contract with any sales agent or distributor of products of the Company or any Subsidiary;
(vii) any contract containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit limiting the freedom of the Company or any of its Subsidiaries Subsidiary to engage compete in any line of business or to compete with any Person; (ii) Contract under which any of the Company person or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; entity;
(viii) stock purchase, stock option any material license or similar plan; franchise agreement (as licensor or licensee or franchisor or franchisee);
(ix) Contract for the employment of any individual on a full-time arrangement or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable obligation with less than 30 days’ notice and without any liability respect to the Company return of inventory or its Subsidiariesmerchandise other than on account of a defective condition, incorrect quantities or missed delivery dates; or
(x) Contract providing for payments to any employeecontract, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money subcontract or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager agency of the Company pursuant to which the Company United States government or any of its Subsidiaries has material ongoing obligationsother governmental entity .
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contractcontracts, no party thereto has given to any other party thereto notice alleging that such a material breach commitments, plans, agreements or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not licenses described in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default Schedule -------- 2.14(a) of the Company Disclosure Schedule nor does the Company have knowledge ------- of any termination, cancellation, limitation or modification or change other than in the ordinary course of business in any Subsidiary business relationship with any material supplier or customer. For the purposes hereof, a supplier is material if it accounted for more than $25,000 of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability orders of the Company and its Subsidiaries for purchases of raw materials and other products essential to its manufacturing processes during either of fiscal year 1996 or any Subsidiary to perform their respective obligations under such contract as a result 1997 or during the three months ended March 31, 1998. A customer is material if it accounted for more than $25,000 of COVID-19 the orders of the Company and its Subsidiaries in either fiscal year 1996 or other force majeure events. The Company has made available to 1997 or during the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing)three months ended March 31, together with all amendments, modifications or supplements thereto1998.
Appears in 1 contract
Sources: Merger Agreement (Lernout & Hauspie Speech Products Nv)
Contracts and Commitments. (a) Neither Except as set forth on Schedule 3.9(a) (collectively, the “Material Contracts”), as of the date hereof, neither the Company nor any of its Subsidiaries are a is party to to, or is otherwise bound by, any: :
(i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract other contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; Union;
(vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viiiii) stock purchase, stock option or similar plan; ;
(ixiii) Contract contract for the employment or engagement of any officer, individual employee or other person on a full-time time, part-time, temporary, consulting or consulting other basis (A) providing for annual base compensation in excess of one hundred thousand dollars ($100,000) per annum125,000, and (B) which is not in each case other than contracts terminable with by the Company for any reason upon less than 30 thirty (30) days’ notice and without incurring any liability to the Company or its Subsidiaries; liability;
(x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xiiv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; their assets;
(xiiv) guaranty of any obligation for borrowed money or other material guaranty; ;
(xiiivi) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); ;
(xivvii) lease or agreement under which it is lessor of or permits agreements relating to any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which completed business acquisition by the Company or any of its Subsidiaries grants within the last four years;
(viii) (i) contract pursuant to a third party, which one or a third party grants to more of the Company or any its Subsidiaries uses Intellectual Property owned by another Person material to the conduct of its Subsidiariesthe Business (excluding (A) shrink-wrap, a click-through or similar non-exclusive license to any Intellectual Propertyagreements, in each case involving consideration for Software, (x) with total annual payments not in excess of fifty thousand dollars $50,000 in the aggregate per vendor, ($50,000y) per annumis obtained on generally available standard commercial terms, other than and (Az) Contracts is not distributed with, incorporated in, or necessary for use or development of, any product or service of the license of commercially availableCompany or its Subsidiaries, off-the-shelf software or (B) Contracts for non-disclosure agreements entered into in the Ordinary Course and (C) non-exclusive license agreements with, consultants and independent contractors of Intellectual Property one or more of the Company or its Subsidiaries entered into on the Company’s or its Subsidiaries’ respective standard form(s) (or a substantially similar form) in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xxii) any settlement agreement with any third party contract pursuant to which one or present or former employee, officer, director or manager more of the Company or its Subsidiaries grants to another Person the right to use any of the Company Intellectual Property (excluding non-exclusive licenses granted to customers in the Ordinary Course), and (iii) all contracts (including settlement agreements, co-existence agreements, and consent agreements) to which the Company or its Subsidiaries is a party or is otherwise bound, pursuant to which the Company is restricted from using, registering, or enforcing Company Intellectual Property in any material respect; or
(ix) contract which prohibits the Company or any of its Subsidiaries has material ongoing obligationsfrom freely engaging in business anywhere in the world.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser a true and correct copies copy of each all written contracts which are referred to on Schedule 3.9(a).
(c) Neither the Company nor any of its Subsidiaries is in default in any material respect under any Material Contract (Contract. All Material Contracts constitute legal, valid and binding obligations of the Company or a such Subsidiary, and are enforceable against the Company or such Subsidiary in accordance with their respective terms, except as enforceability may be limited by bankruptcy laws, other similar laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies. Neither the Company nor any Subsidiary has received any written description of each such notice that any party intends to terminate, cancel, or not renew any Material Contract that is not writing), together with all amendments, modifications or supplements theretoContract.
Appears in 1 contract
Contracts and Commitments. Section 4.21 of the Disclosure Schedules contains a true and correct list of all of the following Contracts (collectively, the “Material Contracts”):
(a) Neither any Contract (or group of related Contracts) for the furnishing or receipt of services, in each case, the performance of which will extend over a period of more than one year or which provides for annual payments to or by the Company nor in excess of $25,000;
(b) (i) any capital lease or (ii) any other lease or other Contract relating to equipment or machinery of the Company providing for annual rental payments in excess of $25,000, under which any such equipment or machinery is held or used by the Company;
(c) any Contract, other than leases relating to equipment and machinery of the Company, relating to the lease or license of any assets of the Company;
(d) any Contract relating to the acquisition or disposition of (i) any business of the Company (whether by merger, consolidation, or other business combination, sale of securities, sale of assets or otherwise), or (ii) any asset of the Company, other than in the Ordinary Course of Business;
(e) any Contract under which the Company is, or may become, obligated to pay any amount in respect of indemnification obligations, purchase price adjustment or otherwise in connection with any (i) acquisition or disposition of assets or securities, (ii) merger, consolidation or other business combination, or (iii) series or group of related transactions or events of the type specified in clauses (i) and (ii) above;
(f) all employment, severance, consulting, bonus, profit-sharing, percentage compensation, deferred compensation, pension, welfare, retirement, equity purchase or equity option plans and agreements and commitments with or relating to the Personnel (current or former) or Affiliates of the Company;
(g) any Contract (or group of related Contracts) (i) under which the Company has created, incurred, assumed or guaranteed any Debt in excess of $25,000 or (ii) under which the Company has permitted any of its Subsidiaries are a party assets to any: become Encumbered;
(h) any Contract under which any Person has guaranteed any Debt of the Company;
(i) any Contract containing non-competition relating to any joint venture, partnership, limited liability company, strategic alliance or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants sharing of profits or otherwise containing covenants that purport losses with any Person to restrict which the Company’s Company is a party or by which the Company or any of its Subsidiaries’ business activity or assets are bound;
(j) any Contract containing covenants purporting to limit the freedom of the Company or any of its Subsidiaries Personnel (current or former) to engage compete in any line of business or in any geographic area;
(k) any Contract relating to compete with confidentiality (whether the Company is subject to or the beneficiary of such obligations);
(l) any Person; agency, dealer, distributor, sales representative, service provider, marketing or similar Contract;
(iim) any Contract under which requiring payments or distributions to any member or Personnel of the Company (current or former), or any relative or Affiliate of any such Person;
(n) any Contract not made in the Ordinary Course of Business;
(o) any Contract with any Material Customer or Material Supplier of the Company;
(p) any Contract providing for termination, retention, change in control or similar payments to its Subsidiaries has made advances Personnel; and
(q) any other Contract (or loans to another Person group of related Contracts) the performance of which involves consideration in excess of one hundred thousand dollars $100,00025,000 over the life of such Contract. The Company has provided Purchaser with true and complete copies of all written Material Contracts and each amendment, supplement, waiver or modification thereto, and has provided to Purchaser a written summary setting forth the terms and conditions of each oral Material Contract. All of the Material Contracts identified on, or required to be identified on Section 4.21 of the Disclosure Schedules are legal, valid, binding and enforceable in accordance with their respective terms with respect to the Company, and to the Knowledge of the Sellers, with respect to each other than party to inter-company loans such Material Contracts, and are in full force and effect. Neither the Company nor to the Knowledge of Sellers, any other party thereto, has breached any provision of, or advances to is in default under the terms of, nor does any employee condition exist which, with or director in connection with travelwithout notice or lapse of time, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint ventureboth, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than would cause the Company or any other party to be in default under any of its Subsidiaries the Material Contracts or would constitute a breach or default or permit termination, modification or acceleration under any such Material Contract. The Company has not (Ai) most favored pricing provisions received any written notice of cancellation or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plantermination or, other than pursuant to the terms of such Material Contract existing as of the date hereof, change in material terms (including, pricing, term and volume) of any such Material Contract or (ii) during the two (2) years prior to the date hereof, obtained or granted any material waiver of or under any provision of any such Material Contract except for routine waivers granted or sought in the Ordinary Course of Business. To the Knowledge of the Sellers, no default has been threatened under any Contract required to be listed on Section 4.21 of the Disclosure Schedules. Except as set forth in on Section 5.14(a) or 4.21 of the Disclosure Schedules relating thereto; (viii) stock purchaseSchedules, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result consummation of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to shall not afford any other party thereto notice alleging that the right to terminate any such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. SCHEDULE 3.12 sets forth a complete and accurate list of all Contracts in the following categories to which any of the ▇▇▇▇▇ Entities is a party or by which any of the ▇▇▇▇▇ Entities is bound ("MATERIAL CONTRACTS"):
(a) Neither Contracts for the Company nor furnishing of services by any of the ▇▇▇▇▇ Entities relating to current or anticipated annual revenues to any of the ▇▇▇▇▇ Entities of more than $1,000,000;
(b) partnership or joint venture Contracts with, or any other investment in (whether through the acquisition of an equity interest, the making of a loan or advance or otherwise), any other Person;
(c) Contracts (i) under which any of the ▇▇▇▇▇ Entities has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money, (ii) constituting capitalized lease obligations, (iii) under which any of the ▇▇▇▇▇ Entities has granted (or may grant) a security interest or lien on any of its Subsidiaries respective properties or assets (other than a Permitted Encumbrance), or (iv) under which any of the ▇▇▇▇▇ Entities has incurred any obligations for any performance bonds, payment bonds, bid bonds, surety bonds, letters of credit, guarantees or similar instruments;
(d) material license, option or other Contracts relating to the Intellectual Property (other than computer software subject to shrink wrap licenses);
(e) Contracts with any Affiliate of any of the ▇▇▇▇▇ Entities or with any current or former officer, director or employee of any of the ▇▇▇▇▇ Entities;
(f) Contracts which require payment in excess of $1,000,000 per year for the purchase of inventory, materials, supplies or equipment, except for open purchase orders that are a party to any: cancelable without material penalty, cost or other liability on not more than thirty (i30) Contract containing non-competition days notice;
(g) distribution, franchise, license, sales, commission, consulting, advertising or non-solicitation marketing Contracts; and
(excluding such covenants contained in customary non-disclosure agreementsh) covenants or otherwise Contracts (other than the Ancillary Agreements), containing covenants that purport to restrict the Company’s restraining or any of its Subsidiaries’ business activity or limit limiting the freedom of any of the Company ▇▇▇▇▇ Entities or any of its Subsidiaries officer, director, shareholder or Affiliate thereof to engage in any line of business or to compete with any Person; (ii) Contract under which any of Person including by restraining or limiting the Company or its Subsidiaries has made advances or loans right to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equitysolicit customers. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has Sellers have made available to the Purchaser true Buyer a true, correct and correct copies complete copy of each Material written Contract (or listed in SCHEDULE 3.12 and a complete written description of each such Material oral Contract that is not writing), together with all amendments, modifications or supplements theretolisted in SCHEDULE 3.12.
Appears in 1 contract
Sources: Stock Purchase Agreement (Viad Corp)
Contracts and Commitments. (a) Neither Except as set forth on Schedule 3.09 of the Company nor any Disclosure Schedules, none of its Subsidiaries are the Acquired Companies is a party to any: or bound by any executory:
(i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) plan or the Disclosure Schedules relating thereto; Contract;
(viii) stock purchase, stock option or similar plan; (ixii) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted LienLiens) on any portion of the assets of the Company or any of its Subsidiaries; Acquired Companies;
(xiiiii) guaranty of any obligation for borrowed money Indebtedness or other material guaranty; guaranty involving more than $100,000;
(xiiiiv) lease or agreement Contract under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); ;
(xivv) lease or agreement Contract under which it is lessor of or permits any third-third party to hold or operate any of its personal property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); ;
(xvvi) other than in respect of blanket purchase orders that do not obligate the Company to purchase a minimum amount, Contract or group of related Contracts requiring with the same party for the purchase by any Acquired Company of products or providing services which provided for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars $100,000 during the trailing twelve-month period ending on the date of the Latest Balance Sheet;
($350,000) in the aggregate; (xvivii) other than standard or blanket purchase orders entered into with customers, contract or group of related contracts with a customer that provided for annual revenues (based on the trailing twelve-month period ending on the date of the Latest Balance Sheet) to the Acquired Companies in excess of $250,000;
(viii) Contract relating to any future disposition or acquisition of material stock, assets or properties by any Acquired Company, or any merger or business combination with respect to or involving any Acquired Company (other than this Agreement);
(ix) Contract requiring any Acquired Company to purchase its total requirements of any product or services from a third party or that contain “take or pay” provisions;
(x) broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting or advertising Contract involving more than $100,000 annually;
(xi) material license or Contract relating to (i) the use by any Acquired Company of any third-party Intellectual Property or (ii) the use of any Company Intellectual Property other than non-exclusive licenses granted to distributors in the ordinary course of business, ;
(xii) Contract which limits or prohibits or purports to limit or prohibit any Contracts Acquired Company from competing or freely engaging in any line of business or with any supplier required Person or anywhere in the world or during any period of time or containing any exclusivity, most favored nations, non-solicitation or similar provisions;
(xiii) other than with respect to be listed any of the Company’s Subsidiaries set forth on Schedule 5.223.04 of the Disclosure Schedules, Contract that provides for any joint venture, partnership or similar arrangement by any Acquired Company;
(xiv) Contract between or among any Acquired Company on the one hand and any Affiliate of any Acquired Company (other than the Company or its Subsidiaries) on the other hand;
(xv) employment agreement or contract with an independent contractor or consultant (or similar arrangement) to which an Acquired Company is a party and which is not cancellable without material penalty or without more than thirty (30) days notice;
(xvi) collective bargaining agreement or Contract with any union, works council or labor organization; or
(xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubtContract, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale absence of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationswould cause a Material Adverse Effect.
(b) Each The Company either has supplied Purchaser with, or has given Purchaser access to, a true and correct copy of all Contracts listed on Schedule 3.09 of the Disclosure Schedules (the “Material Contract is in full force Contracts”), together with all material amendments, modifications and effect, and supplements thereto.
(c) With respect to each Material Contract: (i) such contract is a legal, valid and binding obligation agreement of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the an Acquired Company, of the other parties thereto as applicable, enforceable against each of them in accordance with its terms, in each caseexcept as the enforcement thereof may be limited by bankruptcy Laws, subject to bankruptcy, insolvency, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights or to and general principles of equity. Neither equity affecting the Company nor any Subsidiary availability of specific performance and other equitable remedies; (ii) none of the Company (Acquired Companies, as applicable) , is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default default, nor has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which wouldany Acquired Company taken any action which, with notice or without the lapse of time or the giving of notice or both, would constitute a material breach or material default of the Company or any Subsidiary of the Companydefault, or permit any early termination, modificationmodification or acceleration, acceleration or cancellation ofas applicable, or otherwise adversely affect under such contract; and (iii) to the Company’s knowledge, no other party is in material breach or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations default under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretocontract.
Appears in 1 contract
Contracts and Commitments. (a) Neither the Company nor any Schedule 2.8(a) sets forth a complete and accurate list of its Subsidiaries are a party each Contract described below to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of which the Company or any of its Subsidiaries to engage in properties is party or is otherwise bound or subject (each, a “Material Contract” and collectively, the “Material Contracts”): (i) any line Contract that creates a partnership or a joint venture or arrangement that involves a sharing of business or to compete profits with any other Person; (ii) any Contract under which that purports to or has the effect of limiting either the Company’s right to engage in, or compete with any Person in, any business; (iii) any Contract involving the incurrence by the Company of Liabilities (other than Liabilities to render services to customers in the ordinary course of business) in any one transaction or series of related transactions in excess of $25,000; (iv) any Contract creating any Lien on any of the Shares; (v) any Contract pursuant to which the Company or its Subsidiaries has guaranteed any indebtedness; (vi) any Contract not made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iiivii) Contracts relating any Contract granting any preferential rights to Indebtedness; (iv) joint venture, partnership, strategic alliance purchase or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to acquire any Person other than the Company or interest in any of its Subsidiaries (A) most favored pricing provisions Company’s assets, property or (B) rights or requiring consent of any exclusive party to the transfer and assignment of any such assets, property or rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option any Contract that contains a “most favored nation” or similar plan“most favored customer” clause; and (ix) Contract for the employment any leases of any individual on a full-time properties or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company Company, including any Contract creating an Lien on such property or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationsassets.
(b) Each Except as set forth on Schedule 2.8(b), (i) the Company is not in breach of, or default under, any Material Contract is in full force and effectContract, and (ii) each Material Contract, to the Knowledge of the Company, is a legal, valid and binding obligation upon parties thereto other than the Company in accordance with its terms.
(c) No party to any Material Contract (i) has provided any written notice to the Company of its intent to terminate, or withdraw its participation in, any such Material Contract, (ii) has, to the Knowledge of the Company Company, threatened to terminate, or a Subsidiary withdraw from participation in, any such Material Contract or (iii) is, to the Knowledge of the Company which is party theretoCompany, in breach or default in any material respect under any provision thereof, and, to the knowledge Knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to no event or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default condition has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, whether with or without the lapse passage of time or the giving of notice notice, or both, that would constitute such a material breach or material default default.
(d) Except as set forth on Schedule 2.8(d),the execution, delivery and performance of this Agreement and the consummation of the Company transactions contemplated hereby will not (i) result in or give to any Subsidiary Person any right of the Company, or permit any early termination, modificationnon-renewal, cancellation, withdrawal, acceleration or cancellation of, modification in or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor (ii) result in or give to any Subsidiary of the CompanyPerson any additional rights or entitlement to increased, has delivered notice to additional, accelerated guaranteed or contacted any counterparty to other change in payments under any Material Contract requesting an amendment to such contract regarding or (iii) result in the inability creation or imposition of any Actions upon the Company or any Subsidiary to perform their respective obligations Lien upon any of the property or assets of the Company under such contract as a result the terms of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each any Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoContract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Vishay Precision Group, Inc.)
Contracts and Commitments. Except as set forth in Schedule 2.17 or in the SICC Financial Statements, neither SICC nor any of the Subsidiaries: (a) Neither the Company nor any of its Subsidiaries are is a party to any: any contract, obligation, understanding or commitment (iwhether written or oral) Contract containing non-competition that involves a potential or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants actual commitment or otherwise containing covenants that purport aggregate payments to restrict the Company’s or from SICC or any Subsidiary in excess of its Subsidiaries’ business activity $50,000 in a calendar year, or limit which is otherwise material and not entered into in the freedom ordinary course of the Company business; (b) has any employment contracts, stock redemption or purchase agreements, financing agreements, collective bargaining agreements, consulting or management services agreements, independent contractor agreements, or agreements with any current or former officers, directors, employees or shareholder of SICC or any Subsidiary, or to any Persons or organizations related to or Affiliated with any such Persons; (c) has any contract or arrangement concerning directory publishing matters or billing and collection matters; (d) has any contract or arrangement that limits the ability of its Subsidiaries any of SICC or any Subsidiary to engage compete in any line of business or to compete with any other Person; (iie) Contract under which has any contract relating to any Indebtedness or any guarantee or indemnification of or the granting of security for Indebtedness or any other obligation or liability; (f) has any contract relating to E911 services, interconnection or co-location arrangements, or other arrangements with any local exchange carrier, competitive access provider or other telecommunications carrier; (g) has any contract relating to licenses to or from SICC or any Subsidiary with respect to software or hardware used in the businesses of any of the Company SICC or its Subsidiaries any Subsidiary; (h) has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances any contract relating to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course indemnity obligations of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company of SICC or any of its Subsidiaries Subsidiary, (Ai) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders has entered into in the ordinary course any joint venture or partnership agreement, (j) has granted powers of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants attorney to a third partyperson, or a third party grants to the Company (k) has any agreement or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts commitment relating to the acquisition or disposition (whether by merger, sale divestiture of equity, sale of assets the capital stock or otherwise) other equity securities of any Person or line Person. To the Knowledge of business entered into since the Original Acquisition Date (SICC and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by mergereach Shareholder, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company neither SICC nor any Subsidiary of the Company (as applicable) is in material default under any Material Contractmaterial agreement, instrument, contract, obligation, understanding or commitment and there is no party thereto has given to any other party thereto state of facts which upon notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, both would constitute such a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretodefault.
Appears in 1 contract
Sources: Stock Purchase Agreement (Fairpoint Communications Inc)
Contracts and Commitments. (a) Neither Schedule 2.9(a) sets forth a complete and correct list of all agreements of the Company nor any of its Subsidiaries are following types to which the Target is a party to any: (collectively, the "Target Material Contracts"): (i) Contract agreements that would be required to be filed as exhibits to any filings or reports (collectively, the "Required Reports") made by the Parent under the Securities Act or Exchange Act following the Merger; (ii) agreements for the purchase, sale or distribution of products, materials, commodities, supplies or other personal property, or for the furnishing or receipt of services, the performance of which will extend over a period of more than one year or involve consideration payable by any party in excess of $10,000 in any one year; (iii) loan agreements, indentures, letters of credit, mortgages, notes and other debt instruments; (iv) agreements containing non-competition any "change of control" provisions; (v) agreements, arrangements or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants understandings with any shareholder, employee, director or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom officer of the Company Target or with any affiliate of its Subsidiaries to engage any thereof; (vi) agreements prohibiting the Target from engaging or competing in any line of business or to compete with any Personlimiting such competition; (iivii) Contract under which any joint venture, partnership and similar agreements; (viii) acquisition or divestiture agreements relating to the (A) sale or purchase of assets or stock of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, Target (other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses sales of inventory in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights the purchase of first refusal, rights assets or stock of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien person (other than a Permitted Lien) on any portion the purchase of the assets of the Company inventory, supplies or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into equipment in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22); (xviiix) material Contract with a Governmental Bodybrokerage, finder's or financial advisory agreements; (xviiix) Contracts pursuant to which the Company guarantees of indebtedness for borrowed money of any person; (xi) reseller, agent and dealer agreements; (xii) licensing and rights arrangements for any Target Intellectual Property; and (xiii) agreements that, individually or any of its Subsidiaries grants to a third partytogether with one or more related agreements, or a third party grants are material to the Company assets, financial condition, business, prospects or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager operations of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationsTarget.
(b) Each All of the Target Material Contract is in full force and effect, and is a legal, Contracts are valid and binding obligation agreements of the Company or a Subsidiary of Target, enforceable in accordance with their terms, and there is no default by the Company which is party thereto, andTarget or, to the knowledge of the CompanyTarget, any other party under any such Target Material Contract. None of the other parties thereto enforceable against each to the Target Material Contracts has notified the Target of them in accordance with its terms, in each case, subject any intention to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any terminate a Target Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, .
(c) True and complete copies of all Target Material Contracts have been delivered to the knowledge of the Company, the other party to each of the Material Contracts is not in material default Parent or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretofor inspection.
Appears in 1 contract
Contracts and Commitments. Section 5.19 of the Disclosure Schedules contains an accurate and complete list of all of the following Contracts to which a Group Company is a party (other than Employee Plans) (collectively with any Related Party Arrangement, the “Material Contracts”):
(a) Neither other than purchase orders with customers entered into in the Ordinary Course of Business, any Contracts (or group of related Contracts) (i) with a Material Customer, (ii) with a Material Supplier or (iii) for the furnishing or receipt of products or services, in each case, which provides for required annual payments to or by the Company nor Group in excess of $250,000;
(b) employment (other than offer letters entered into in the Ordinary Course of Business that provide for “at will” employment and do not include severance or termination benefits) and consulting agreements providing for annual compensation of in excess of $100,000 per annum;
(c) bonus, profit-sharing, percentage compensation, deferred compensation, pension, unit purchase or unit option plans and similar Contracts with or relating to the Personnel of the Company Group;
(d) Contracts (or group of related Contracts) (i) under which any Group Company has created, incurred, assumed or guaranteed any Debt with a principal amount in excess of $250,000, (ii) under which any Group Company has permitted any of its Subsidiaries are a party assets to any: become Encumbered or (iii) limiting the ability of any Group Company to incur Debt (including guarantees) or incur liens;
(e) any material Contract relating to Intellectual Property or IT Assets, other than non-exclusive licenses (i) Contract containing non-competition or non-solicitation (excluding such covenants contained granted to customers in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any Ordinary Course of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; Business and (ii) Contract under which any for off-the-shelf shrinkwrap, clickwrap or similar commercially available non-custom software with annual fees of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars less than $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; 150,000.
(iiif) Contracts relating to Indebtedness; (iv) any joint venture, partnership, strategic alliance or similar agreements arrangements regarding the sharing of profits or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract losses with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; Person;
(vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviiig) Contracts pursuant to which any Group Company is a lessor or lessee of any real property (including the Company Real Property Leases) or any of its Subsidiaries grants to a third partymachinery, equipment, motor vehicles, office furniture, fixtures or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration other personal property in excess of fifty thousand dollars ($50,000) 150,000 per annum, other than ;
(Ah) Contracts for the license of commercially available, off-the-shelf software that involve or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating relate to the acquisition or disposition of a business or assets, properties or securities of, or any other investment in, another Person other than a Group Company (whether by merger, sale of equitystock, sale of assets assets, lease, license or otherwise) or with respect to the sale or transfer of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) asset of any Person Group Company at any time during the three (3) year period prior to the date of this Agreement, except in the Ordinary Course of Business, or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which any Group Company has ongoing obligations (including continuing economic obligations with respect to the Company payment of any amounts in respect of earn-outs, deferred purchase price or any of its Subsidiaries has material ongoing obligations.purchase price adjustments) or liabilities;
(bi) Each Material Contract is Contracts requiring capital expenditures in full force and effectan amount in excess of $250,000 in any 12-month period;
(j) Contracts that (i) require any Group Company to do business on an exclusive basis or restricts or limits any Group Company from owning, and is a legalmanaging, valid and binding obligation of the Company soliciting or a Subsidiary of the Company which is party theretooperating any business or in any geographical location, and(ii) contain minimum payment obligations, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its termstake-or-pay obligations or performance guarantees, in each case, subject by a Group Company, (iii) grant any right of first refusal or right of first offer or similar right to bankruptcythird parties or (iv) provide for any payments, insolvencyrights or obligations that are conditioned, reorganizationin whole or in part, moratorium on a change of control with respect to a Group Company;
(k) except with respect to the operations and similar Laws Contracts relating to Nantong, Contracts, including any sale or affecting creditors’ rights purchase orders, providing for any payments denominated in any currency other than United States dollars;
(l) Contracts that limit or purport to general principles limit the payment of equitydividends or distributions in respect of the Units or the capital stock of any Subsidiary, the pledging of the Units or the capital stock of any Subsidiary or the incurrence of indebtedness for borrowed money or guarantees by any Group Company or the ability of any Group Company in any material respect to pledge, sell, transfer or otherwise dispose of any material amount of assets or business;
(m) Contracts that are with a Governmental Entity;
(n) collective bargaining or similar agreements with any labor organization; and
(o) Contracts that reflect a settlement of any threatened or pending Proceeding either (i) in excess of $250,000 and entered into since January 1, 2019 or (ii) containing continuing obligations or restrictions on any Group Company. A true and complete copy of each Material Contract (including all exhibits, schedules, and annexes and any amendments, modifications and supplements thereto) has been made available to Purchaser prior to the date hereof. All of the Material Contracts are in full force and effect and are valid and enforceable in accordance with their terms against the applicable Group Company party thereto and, to the Knowledge of the Company, against each other party thereto. Neither the applicable Group Company nor any Subsidiary party thereto nor, to the Knowledge of the Company (as applicable) Company, any other party thereto, has breached any material provision of, or is in material default under the terms of, nor does any Material Contractcondition exist which (with or without notice or lapse of time, no or both), would cause the applicable Group Company party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, andor, to the knowledge Knowledge of the Company, the any other party party, to each be in material default under any of the Material Contracts is not in material default or material breach thereunderContracts. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default Except as set forth on Section 5.03 of the Company or any Subsidiary Disclosure Schedules, the consummation of the Company, or permit transactions contemplated by this Agreement shall not afford any early termination, modification, acceleration or cancellation of, or otherwise adversely affect other party the Company’s or right to terminate any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any such Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Neither Section 4.8(a) of the Disclosure Schedules sets forth a true and complete list of the following Contracts to which the Company nor any of its Subsidiaries are is a party to any: party:
(i) any collective bargaining, works council, shop, enterprise or recognition agreement or other Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; Union;
(ii) Contract under which any employment agreement with any employee of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; Company;
(iii) Contracts any Contract relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or Indebtedness, (B) any exclusive rights, rights of first refusal, rights of first negotiation the PPP Loan or other similar rights; (viC) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien of an Encumbrance (other than a Permitted LienEncumbrances) on any portion of the assets of the Company or Company’s assets;
(iv) any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is the lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) or lease or agreement under which it is the lessor of or permits any third-third party to hold or operate any Company property, real or personal;
(v) any Contract, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course Ordinary Course of businessBusiness, (A) with the twenty-five (25) customers and twenty-five (25) suppliers/vendors of the Company that have purchased from or sold to, as applicable, the Company the most products or services (based upon consideration received/paid by the Company) since the Look-Back Date, (B) for the purchase or sale of materials, supplies, merchandise, equipment, parts or other property or services with other customers or suppliers requiring aggregate future payments in excess of $10,000, or (C) any Contracts with guaranty of any supplier required obligation described in clauses (A) and (B);
(vi) any Contract for capital expenditures or the acquisition or construction of fixed assets for the benefit and use of the Company, the performance of which involves unpaid commitments or liabilities in excess of $10,000;
(vii) any Contract (A) for the acquisition (by merger or otherwise) of any business or securities of another Person or all or substantially all of the of the assets of another Person or (B) for the disposition of the assets or of any business enterprise of the Company other than dispositions of inventory and products of the Company in the Ordinary Course of Business, in each case that is the source of any surviving rights, obligations or other provisions;
(viii) any license, sublicense, consent to be listed on Schedule 5.22; (xvii) material use agreement, settlement, coexistence agreement, covenants not to ▇▇▇, permission or other Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or grants rights to any of its Subsidiaries grants to a third party, or a third party grants or receives a grant of rights from any third party to use any Intellectual Property material to the Company or any operation of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess the business of fifty thousand dollars ($50,000) per annumthe Company, other than (A) Contracts for the license of commercially available, agreements relating to off-the-shelf commercially available software available for an annual or (B) Contracts for the non-exclusive one time license fee of Intellectual Property less than $10,000 in the ordinary course aggregate;
(ix) any Contract that requires the Company to purchase its total requirements of business; any product or service from a third party or that contain “take or pay” provisions;
(xixx) except any broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting or advertising Contract;
(xi) any Contract with any Governmental Authority;
(xii) any Contract that limits the ability of the Company to compete in connection any line of business or with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line in any geographic area or during any period of business entered into since time;
(xiii) any Contract that provides for any joint venture, partnership or similar arrangement by the Original Acquisition Date Company; and
(xiv) any other Contract involving aggregate consideration in excess of $10,000 and which, in each case, cannot be cancelled by the Company without penalty or without more than 90 days’ notice. Each Contract of the type described in clauses (i) through (xiv) above (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwiseeach Real Property Lease required to be listed in Section 4.11(a) of any Person or line of business and (xxthe Disclosure Schedules) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant is referred to which the Company or any of its Subsidiaries has material ongoing obligationsherein as a “Material Contract”.
(b) Each The Company has made available to Parent a true and complete copy (including all amendments or modifications thereto) of each Material Contract is (other than purchase orders entered into in full force and effectthe Ordinary Course of Business).
(c) With respect to each Material Contract, and is a legal, valid and binding obligation of neither the Company or a Subsidiary of the Company which is party thereto, andnor, to the knowledge Knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, (with or without the lapse of time or the giving of notice, or both) in material breach or default under such Material Contract, or has provided or received any notice of any written intention (or to the Company’s Knowledge, verbal notice) to terminate such Material Contract.
(d) Except as set forth on Section 4.8(d) of the Disclosure Schedules, the execution, delivery and performance of this Agreement and the Company Documents by the Company and the consummation of the transactions contemplated hereby or thereby do not and will not conflict with or result in any material breach of, constitute a material default or an event that, with or without notice or lapse of time or both, would constitute a material default under, or result in the acceleration of or create in any party the right to accelerate, terminate, modify or cancel any, or require any consent, notice or other material action by any Person under, the provisions of any Material Contract. No event has occurred, is pending or, to the Company’s Knowledge, threatened in writing, which after the giving of notice, lapse of time or otherwise would constitute a material breach or material default of by the Company or under any Subsidiary of the CompanyMaterial Contract or, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect to the Company’s or Knowledge, any of its Subsidiaries’ rights or obligations under, other party to any Material Contract or would result in a termination thereof or cause or permit the acceleration or other changes of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice or the loss of any material dispute with respect to any benefit thereunder.
(e) Each Material Contract. Neither the CompanyContract is in full force and effect and constitutes a legal, nor any Subsidiary valid and binding obligation of the Company, has delivered notice and, to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability Company’s Knowledge, constitutes a valid and binding obligation of the Company or any Subsidiary to perform their respective obligations under other parties thereto, in each case, except as such contract as a result of COVID-19 or other force majeure events. The Company has made available to enforceability may be limited by the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoEquitable Exceptions.
Appears in 1 contract
Sources: Merger Agreement (LIVE VENTURES Inc)
Contracts and Commitments. (a) Neither Schedule 3.17 contains a complete and accurate list of all contracts (written or oral), plans, undertakings, commitments or agreements or other instruments (including, without limitation, intercompany contracts) (“Contracts”) of the following categories to which any Company nor any of its Subsidiaries are is a party to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s by which it or any of its Subsidiaries’ properties or assets is bound as of the date of this Agreement:
(i) (1) Contracts for the purchase of materials, supplies, or equipment (other than purchase contracts and orders for inventory in the ordinary course of business activity consistent with past practice), (2) management, service, commission, consulting, or limit other similar types of Contracts or (3) advertising Contracts, in any such case that have an aggregate future liability to any person (other than the Companies) in excess of $2,500,000 per year and are not terminable by the Companies by notice of not more than 30 days;
(ii) material licenses, options, or other agreements relating in whole or in part to the Intellectual Property (including any license or other agreement under which a Company is licensee or licensor of any such Intellectual Property);
(iii) Contracts (including so-called take-or-pay or keepwell agreements) under which any person (including a Company) has directly or indirectly guaranteed indebtedness, liabilities, or obligations of any person (in each case other than endorsements for the purpose of collection in the ordinary course of business) and, for each such guaranty, (A) whether the obligation covered by that guaranty relates to any Contributor or its affiliate and (B) if the guaranty is secured by a Lien on any property or other asset of the Companies, the nature of that security;
(iv) any Contract that creates a partnership, joint venture, investment or other arrangement (A) involving a sharing of profits or losses relating to all or any portion of the business of any of the Companies, or (B) requiring any of the Companies to invest funds in or make loans to, or purchase any securities of, another person, venture or other business enterprise, in each case, that could reasonably be expected to be in excess of $10,000,000;
(1) Contracts pertaining to the purchase and sale of natural gas in all its forms and all other hydrocarbons (including liquid products) having a term of more than twenty-seven days or involving the payment or receipt of more than $2,500,000 per year of cash or other value, including, without limitation, pipeline leases or operating agreements, including compressor leases; and (2) Contracts pertaining to the processing, treating, compression, gathering, storage, exchange, transportation or transmission of natural gas in all its forms and all other hydrocarbons (including liquid products) involving the payment or receipt of more than $2,500,000 per year of cash or other value;
(vi) Contracts, leases, or easements involving yearly rental payments or receipts in excess of $2,500,000;
(vii) all promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for the lending of money, whether as borrower, lender or guarantor, in excess of $10,000,000 and all related security agreements or similar agreements associated therewith;
(viii) Contracts containing covenants limiting the freedom of the a Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which person or operate at any of the Company or its Subsidiaries has made advances or loans location, including, without limitation, any preferential rights granted to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; third parties;
(ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license acquisition or disposition, directly or indirectly (by merger or otherwise), of commercially available, off-the-shelf software assets with a value in excess of $10,000,000 (other than inventory) or (B) Contracts for the non-exclusive license capital stock of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement any person (including, for the avoidance of doubtwithout limitation, the Pre-Closing RestructuringCompanies);
(x) Contracts between a Company, Contracts relating to on one hand, and any of the acquisition Contributors or disposition any affiliate of the Contributors (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present current or former employee, officer, director or manager employee of the Company pursuant to which the Company Contributors or any affiliate of its Subsidiaries has the Contributors) on the other hand;
(xi) Contracts pertaining to the ownership, operation, or maintenance of any and all facilities of the Companies having a value in excess of $10,000,000;
(xii) to the extent not otherwise listed on Schedule 3.17, Contracts the primary purpose of which are to require a Company to indemnify or otherwise make whole any person with an indemnification or make whole obligation having a value in excess of $10,000,000;
(xiii) Contracts that prohibit a Company from making cash distributions in respect of the equity interests of such Company, other than restrictions set forth in the limited liability company agreement or other governing documents of a Company; and
(xiv) any other Contract which is material ongoing obligationsto the Companies.
(b) Each True copies of the written Contracts, and accurate written summaries of the oral Contracts, identified in Schedule 3.17 (the “Material Contract Contracts”) have been made available to the Partnership. Except as set forth in Schedule 3.17, the Companies are not and, to KMI’s and the Contributors’ knowledge, no other party is in default under, or in breach or violation of (and no event has occurred which, with notice or the lapse of time or both, would constitute a default under, or a breach or violation or lapse of) any term, condition or provision of any of the Material Contracts except for defaults, breaches, violations or events which would not, individually or in the aggregate, have, or reasonably be expected to have, a Material Adverse Effect on the Companies, taken as a whole.
(c) Other than Contracts which have terminated or expired in accordance with their terms, each of the Material Contracts constitutes valid, binding and enforceable obligations of the Companies or the Contributors and the Contributors’ affiliates to the extent they are parties thereto and, to KMI’s and the Contributors’ knowledge, enforceable obligations of any other party thereto, in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered on a proceeding in equity or at law) and an implied covenant of good faith and fair dealing) and is in full force and effect, and is a legalno defenses, valid and binding obligation of the Company off-sets or a Subsidiary of the Company which is party thereto, andcounterclaims have been asserted or, to the knowledge of KMI and the CompanyContributors, of threatened by any party thereto other than the other parties thereto enforceable against each of them in accordance with its termsCompanies, in each casenor has a Company executed any waiver that materially waives any rights thereunder, subject to bankruptcy, insolvency, reorganization, moratorium except as Schedule 3.17 sets forth.
(d) To KMI’s and similar Laws relating to or affecting creditorsthe Contributors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contractknowledge, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which either entitles, or would, with upon notice or without the lapse of time or the giving of notice or both, constitute entitle the holder of any indebtedness set forth in Schedule 3.17 to accelerate, or which does accelerate, the maturity of any indebtedness affecting the Companies.
(e) Except as set forth in Schedule 3.17 or as would not, individually or in the aggregate, have, or reasonably be expected to have, a material breach or material default Material Adverse Effect on the Companies, taken as a whole, (i) none of the Company Contributors or the Contributors' affiliates have received any Subsidiary of the Companyprepayment, advance payment, deposits or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect theretosimilar payments, and have no party has given written notice of any material dispute refund obligation, with respect to any Material Contract. Neither the Companygas or other hydrocarbon (including liquid products) or products purchased, nor any Subsidiary sold, transported, gathered, stored or processed by or on behalf of the CompanyCompanies; (ii) none of the Contributors or the Contributors’ affiliates have received any compensation for transportation, has delivered notice to gathering, storage or contacted any counterparty processing services which would be subject to any Material Contract requesting an amendment refund or create any repayment obligation either by or to such contract regarding the inability Companies, and to KMI's and the Contributors' knowledge, there is no basis for a claim that a refund is due; and (iii) with regard to gas or other hydrocarbon (including liquid products) transportation, gathering, processing, storage and sales Contracts in effect as of the Company or any Subsidiary date hereof, the Companies will be entitled to perform their respective obligations under such receive the full contract as a result of COVID-19 or other force majeure events. The Company has made available to price in accordance with the Purchaser true and correct copies of each Material Contract (or a written description terms of each such Material Contract that is not writing)for all gas and products transported, together with all amendmentsgathered, modifications or supplements theretoprocessed, stored and/or sold on and after the Closing Date.
Appears in 1 contract
Sources: Contribution Agreement
Contracts and Commitments. (a) Neither Section 3.6 of the Company nor Disclosure Schedule sets forth a complete and accurate list of all Contracts in the following categories as of the date hereof (except to the extent that any such category specifies a different date, in which case such corresponding list is made as of its Subsidiaries are a party to any: such specified date):
(i) each Contract containing non-competition (or non-solicitation group of related Contracts) for the furnishing of services by the Company and/or its Subsidiaries involving annual revenues of more than $1,000,000 to the Company and its Subsidiaries;
(excluding ii) each Contract (or group of related Contracts) concerning a partnership or joint venture with, or any other equity or similar investment in any other Person;
(iii) each Contract (or group of related Contracts) (A) under which the Company or its Subsidiaries has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness for borrowed money, (B) constituting capital lease obligations, (C) under which the Company or its Subsidiaries has granted (or may grant) a security interest or lien on any of the Assets or (D) under which the Company or its Subsidiaries has incurred any obligations for any performance bonds, payment bonds, bid bonds, surety bonds, letters of credit, guarantees or similar instruments in each case in an amount exceeding individually or in the aggregate as to any related items due to the same party or relating to the same transactions, $1,000,000;
(iv) each Contract (or group of related Contracts) with any of the Personnel, any Affiliate of the Company or any member of any such covenants contained person's immediate family, including, without limitation, Contracts (A) to employ or terminate executive officers or other Personnel and other Contracts with present or former officers, directors or stockholders or other corporate Personnel or (B) that will result in customary non-disclosure agreementsthe payment by, or the creation of any commitment or obligation (absolute or contingent, matured or unmatured) covenants to pay on behalf of the Company or its Subsidiaries or any Affiliate of the Company or its Subsidiaries, any severance, termination, "golden parachute" or other similar payments to any present or former Personnel following termination of employment or otherwise as a result of the consummation of the transactions contemplated by the Transaction Documents or as a result of a change of control of the Company;
(v) each Contract (or group of related Contracts), other than Contracts covered by clause (vii) of this Section 3.6, providing for payments in excess of $1,000,000 over the life of such Contract (or group of related Contracts), except for such Contracts that are cancelable on not more than 30 days' notice by the Company or its Subsidiaries without penalty or increased cost;
(vi) each distribution, franchise, license, sales, commission, consulting agency or advertising Contract related to the Assets or the business providing for payments in excess of $1,000,000, except for such Contracts that are cancelable on not more than 30 days' notice by the Company or its Subsidiaries without penalty or increased cost;
(vii) each Contract (or group of related Contracts) containing covenants that purport to restrict the Company’s restraining or any of its Subsidiaries’ business activity or limit limiting the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of Person including, without limitation, by restraining or limiting the Company or its Subsidiaries has made advances or loans right to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; solicit customers;
(viii) stock purchaseeach material Contract (or group of related Contracts) with the United States, stock option any state or similar plan; local government or any agency or department thereof;
(ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) each material Contract with a Governmental Body; (xviiior group of related Contracts) Contracts pursuant to which the Company or any of its Subsidiaries grants have sold any Assets and have created any obligation to a third party, or a third party grants indemnify anyone with respect thereto;
(x) any other material Contract. The Company and its Subsidiaries have delivered to the Company or any Purchasers a true and correct copy of those written Contracts listed in Section 3.6 of the Disclosure Schedule and marked with an asterisk (except for those Contracts relating to Target and its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is which have not writingbeen delivered), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Sources: Preferred Stock Purchase Agreement (Olivetti International Sa)
Contracts and Commitments. (a) Neither The “Contracts Schedule” attached hereto lists all of the following written agreements to which any member of the Company nor any of its Subsidiaries are Group is a party to any: and which are in effect as of the date hereof:
(i) Any Contract containing non-competition providing for payments by or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom member of the Company Group for products (including raw materials and packaging) or any of its Subsidiaries to engage in any line of business or to compete with any Person; services (iiA) Contract under which the undelivered balance of such products or services has a purchase or sale price in excess of $3,000,000 or (B) that otherwise involves or is reasonably expected to involve consideration in excess of $3,000,000 in the aggregate to any one Person during the one (1) year period after the date hereof, other than, in all cases, (x) Contracts which may be terminated, without penalty, by any of the Company Group on notice of ninety (90) days or its Subsidiaries has made advances less and (y) purchase orders for the sale of goods to customers or loans to another Person purchase of inventory, supplies and/or equipment, in excess of one hundred thousand dollars $100,000each case, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; ;
(ii) any Contract which involves commitments to make capital expenditures in excess of $3,000,000,
(iii) Contracts relating to Indebtedness; Indebtedness of the Company Group or any guaranty by any member of the Company Group of any obligation in respect of borrowed money;
(iv) joint ventureContracts of guaranty, partnership, strategic alliance surety or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to indemnification by any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets member of the Company or any of its Subsidiaries; (xii) guaranty of any obligation Group, except for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, provisions for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments indemnification contained in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders agreements entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; business (xvii) material Contract with a Governmental Body; other than for indebtedness for borrowed money);
(xviiiv) Contracts pursuant to under which any member of the Company Group has made advances or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license loans to any Intellectual Propertyother Person, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than except (A) Contracts for advancement of reimbursable ordinary and necessary business expenses made to directors, officers and employees of any member of the license of commercially available, off-the-shelf software Company Group or (B) Contracts for to the non-exclusive license of Intellectual Property extent made in the ordinary course of business; ;
(xixvi) except employment and consulting agreements (other than any agreement for “at-will” employment) providing for aggregate payments to any Person in any calendar year in excess of $150,000 or which provide for any payments or benefits (other than benefits payable at common law or under statute) upon (A) such individual’s termination of employment or (B) a change in control of such Company Group member;
(vii) collective bargaining agreements or Contracts with any labor union;
(viii) material Contracts relating to the marketing, sale, advertising or promotion of its products or services involving consideration in excess of $500,000;
(ix) all confidentiality, secrecy or non-disclosure Contracts (other than those entered into in the ordinary course of business or in connection with the transactions contemplated by this Agreement Agreement), or other Contracts imposing any material restriction, limitation or impediment on the right or ability of any member of the Company Group to engage in or conduct any line of business, compete with any other Person or solicit any customer, employee or other service provider, operate the manufacturing facilities at maximum production capacity or otherwise conduct its business;
(includingx) Contracts with respect to any partnership or joint venture;
(xi) Contracts between or among any member of the Company Group, on the one hand, and any of the Company Stockholders or any current or former officer, director, stockholder or Affiliate (other than the Company Group) of any member of the Company Group, on the other hand, other than any benefit plan or employment Contracts;
(xii) Contracts for the avoidance sale of doubtany material assets of any member of the Company Group in the past three (3) years, other than in the Pre-Closing Restructuring), ordinary course of business;
(xiii) Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager member of the Company Group of any operating business or the capital stock of any other Person in the past three (3) years other than in the ordinary course of business;
(xiv) Contracts for the development, license or use of Proprietary Rights (excluding (A) non-exclusive licenses granted by the Company Group in the ordinary course of business consistent with past practices, (B) assignment agreements entered into with employees of the Company Group in the ordinary course of business consistent with past practices, (C) agreements for standard off-the-shelf software having a replacement cost of less than $250,000) and (D) Contracts assigning to the Company Group ownership of Proprietary Rights (other than agreements with employees or contractors);
(xv) Contracts pursuant to which any member of the Company Group is a lessor or a lessee of any property, personal or real, or holds or operates any tangible personal property owned by another Person, except for any leases of its Subsidiaries has material ongoing obligationspersonal property under which the aggregate annual rent or lease payments do not exceed $250,000;
(xvi) any settlement, conciliation or similar agreement, the performance of which will involve payment after the execution date of this Agreement for consideration in excess of $250,000 in the aggregate or governmental monitoring, consent decree or reporting responsibilities outside the ordinary course of business; and
(xvii) Contracts that require any member of the Company Group to use any supplier or third party for all or substantially all of such member of the Company Group’s requirements or needs or requires such member of the Company Group to provide a third party “most favored nation” or similar protective pricing terms, in each case only to the extent such Contract is reasonably expected to require payments from any party thereto of $1,000,000 or more during any twelve (12) month period occurring after the Closing Date.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true or its representatives a true, correct and correct copies complete copy of each Material Contract (or a written description of each such Material Contract that is not writing), set forth on the “Contracts Schedule,” together with all amendments, modifications or supplements thereto, other than any Contract which is an oral Contract. Except as disclosed on the attached “Contracts Schedule”: (i) no Contract set forth on the attached “Contracts Schedule,” has been breached in any material respect by the Company or canceled by the other party thereto, which breach or cancellation has not been duly cured or reinstated; (ii) no member of the Company Group is in receipt of any written claim of default under any such Contract dated less than ten days prior to the date of this Agreement; and (iii) each Contract listed on the attached “Contracts Schedule” is valid, binding and enforceable against the Company or one or more members of the Company Group, as applicable, except as such enforceability may be limited by (A) applicable insolvency, bankruptcy, reorganization, moratorium or other similar Laws affecting creditors’ rights generally, and (B) applicable equitable principles (whether considered in a proceeding at law or in equity).
Appears in 1 contract
Contracts and Commitments. (a) Neither The Disclosure Schedule, under the Company nor any of its Subsidiaries are caption referencing this Section 4.14, lists the following contracts, commitments and/or binding understandings, whether oral or written, to which Seller is a party and which are currently in effect, and which relate to any: the operation of the Business or the Assets (each a "Disclosed Contract"):
(i) Contract containing non-competition all employment or non-solicitation (excluding such covenants contained in customary non-disclosure consulting agreements) covenants , employee benefit plans and union or otherwise containing covenants that purport to restrict the Company’s or any of collective bargaining agreements and all noncompetition and/or confidentiality agreements Seller has entered into with its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; current and former employees;
(ii) Contract under which any of the Company all sales agency or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; advertising agency contracts;
(iii) Contracts relating all material contracts terminable by the other party thereto upon a change of control of Seller or upon the failure of Seller to Indebtedness; satisfy financial or performance criteria specified in such contract;
(iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; all leases of personal property (to the extent not otherwise disclosed in the Disclosure Schedule under the caption referencing Section 4.10);
(v) Contract (other than Franchise Agreements) that grants all contracts relating to the performance and payment of any Person other than the Company surety bond or any letter of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; credit required to be maintained by Seller;
(vi) collective bargaining agreement all confidentiality or Contract with any other employee representative of a group of employees relating nondisclosure agreements not disclosed pursuant to wages, hours and other conditions of employment; Section 4.14(a)(i);
(vii) bonus, pension, profit sharing, retirement all stock purchase or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; stock option plans;
(viii) stock purchase, stock option all agreements or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture indentures relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) lien on any portion of the assets of the Company or Assets;
(ix) any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; otherwise;
(x) all contracts or group of related contracts with the same party for the purchase of products or services under which the obligation to purchase such products or services after the Closing Date is in excess of $100,000;
(xi) all contracts or group of related contracts with the same party for the sale of products or services under which the obligation to provide such products or services after the Closing Date has a sales price in excess of $100,000;
(xii) agreements for the sale of any capital asset;
(xiii) all franchise agreements;
(xiv) contract or commitment for capital expenditures in excess of $100,000;
(xv) all contracts which by their express terms prohibit Seller and/or the Shareholders from freely engaging in business anywhere in the world;
(xvi) all development, consulting, license (other than licenses for off- the-shelf computer software) or other agreements providing for the payment or receipt of royalties or other compensation by Seller in connection with the intellectual property rights listed under the caption referencing Section 4.15(a) in the Disclosure Schedule;
(xvii) all bonus, pension, phantom stock, profit sharing, retirement or other forms of deferred compensation plans, other than those described in the Disclosure Schedule under the caption referencing Section 4.19 (or excluded by such section from inclusion thereunder);
(xviii) hospitalization insurance or other welfare benefit plan or practice, whether formal or informal, other than as described in the Disclosure Schedule under the caption referencing Section 4.19 (or excluded by such section from inclusion thereunder);
(xix) lease or agreement under which it is lessee the lessor of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-third party to hold or operate operate, any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ;
($100,000); (xvxx) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess other agreement of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders Seller not entered into in the ordinary course Ordinary Course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) Business or that is material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company Assets, Business, financial condition or results of operation of Seller; and
(xxi) any agreement of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts Seller relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant Business that is not assignable to which the Company or any of its Subsidiaries has material ongoing obligationsBuyer.
(b) Each Material With respect to each Disclosed Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Assumed Contract, (i) Seller has performed all material obligations where such obligations were required to be performed by it thereunder, (ii) Seller is not in receipt of any written claim of default thereunder, (iii) Seller has no party thereto has given to present expectation or intention of not fully performing any other party thereto notice alleging that such a material obligation thereunder and (iv) Seller is not aware of any breach or material default has occurred, and, to the knowledge of the Company, anticipated breach by the other party thereto.
(c) Prior to each the date of the Material Contracts is not in material default or material breach thereunder. No event has occurred which wouldthis Agreement, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company Seller has made available to the Purchaser true Buyer a true, correct and correct copies complete copy of each Material Contract (or a written description of each such Material Contract that is not writing)Assumed Contract, together with all amendments, modifications waivers or supplements other changes thereto, and a written description of each oral Assumed Contract where the minimum annual payment obligation thereunder by either party exceeds $50,000.
Appears in 1 contract
Sources: Asset Purchase Agreement (C H Robinson Worldwide Inc)
Contracts and Commitments. (a) Neither Schedule 3.15(a) of the Company nor Disclosure Schedule sets forth each of the following types of Contracts currently in force pursuant to which any of A2iA and its Subsidiaries are is a party to any: or is bound (each a “Material Contract”):
(i) any Contract containing that provides for post-employment or post-consulting liabilities or obligations, including severance pay other than obligations associated with any non-competition compete undertaking (A) the enforcement of which can be waived by A2iA or non-solicitation its Subsidiary at its exclusive election and (excluding B) for which a waiver by A2iA or its Subsidiary will result in avoidance of such covenants contained in customary non-disclosure agreementsobligation;
(ii) covenants any Contract or otherwise containing covenants that purport A2iA Employee Plan under which payments or obligations owed to restrict the Company’s or any employee of its Subsidiaries’ business activity or limit the freedom of the Company A2iA or any of its Subsidiaries to engage will be increased, accelerated or vested by the occurrence (whether alone or in any line of business or to compete conjunction with any Person; (iiother event) Contract under which of any of the Company transactions contemplated by this Agreement or its Subsidiaries has made advances under which the value of the payments or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in obligations will be calculated on the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment basis of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; , whether pursuant to a change in control or otherwise;
(xiiii) agreement any collective bargaining agreements, including the CBA, or indenture relating to the borrowing other Contract with any labor union or similar Representative of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion employees of the assets of the Company A2iA or any of its Subsidiaries; ;
(xiiiv) guaranty any Contract relating to the disposition or acquisition of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee ofassets, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) each case other than purchase orders entered into inventory sold in the ordinary course of businessbusiness and consistent with past practice;
(v) any Contract relating to an ownership interest in any corporation, partnership, joint venture or other business enterprise or Person;
(vi) any Contracts with Contract for the purchase of materials, supplies, equipment or services (1) from a Related Party or (2) under which the aggregate payments made to one party or group of related parties during the past twelve (12) months exceeded, or for the following twelve (12) months is expected to exceed, €150,000;
(vii) any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; Material Supplier;
(xviiiviii) Contracts pursuant any Contract with a Material Customer;
(ix) any Contract relating to which the Company acquisition, transfer or development of any Intellectual Property or Intellectual Property Rights owned by A2iA or one of its Subsidiaries, incorporated into any of the A2iA Products or otherwise used in the conduct of the businesses of A2iA or any of its Subsidiaries grants to a third partyother than (A) any intercompany Contract or (B) any employment Contract, including any Contracts with trainees or a third party grants temporary workers;
(x) any Outbound IP Licenses;
(xi) any Inbound IP Licenses;
(xii) any Contract relating to the Company guarantee (whether absolute or contingent) by A2iA or any of its Subsidiaries of (1) the performance of any other Person (other than A2iA or one of its Subsidiaries) or (2) the whole or any part of the indebtedness or liabilities of any other Person (other than A2iA or one of its Subsidiaries);
(xiii) any Contract containing an obligation to indemnify any officer, director, manager or agent of A2iA or any of its Subsidiaries other than obligations associated with any non-compete undertaking (A) the enforcement of which can be waived by A2iA or its Subsidiary at its exclusive election and (B) for which a waiver by A2iA or its Subsidiary will result in avoidance of such obligation;
(xiv) any Contract which limits or restricts (1) where A2iA or any of its Subsidiaries may conduct business, (2) where A2iA or any of its Subsidiaries may use, exploit, assert or enforce any A2iA IP, (3) the type or lines of business in which A2iA or any of its Subsidiaries may engage or (4) any acquisition of assets or stock (tangible or intangible) by A2iA or any of its Subsidiaries, a license to ;
(xv) any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts Contract under which the aggregate payments or receipts for the license of commercially availablepast twelve (12) months exceeded, off-the-shelf software or (B) Contracts for the non-exclusive license following twelve (12) months is expected to exceed, €250,000 and that cannot be terminated by A2iA or its applicable Subsidiary at will on less than ninety (90) days’ notice;
(xvi) any Contract for the borrowing or lending of Intellectual Property money, or the availability of credit (except credit extended by A2iA or any of its Subsidiaries to customers in the ordinary course of business; business and consistent with past practice);
(xvii) any Real Property Lease;
(xviii) any Contract providing for any individual capital expenditure of €50,000 or more during any twelve (12) month period or capital expenditures of €150,000 or more, in the aggregate, over the life of the Contract;
(xix) except in connection with the transactions contemplated by this Agreement (includingany Contract relating to any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the avoidance exchange of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and currency; and
(xx) any settlement agreement with any third party or present or former employee, officer, director or manager other Contract material to the businesses of the Company pursuant to which the Company or any of A2iA and its Subsidiaries has material ongoing obligationsSubsidiaries.
(b) Each An accurate and complete copy of each Material Contract is in full force and effect(including all amendments thereto) has been made available to Buyer.
(c) Neither A2iA nor its Subsidiaries, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, andnor, to the knowledge of the CompanySellers’ Knowledge, of the any other parties thereto enforceable against each of them in accordance with its terms, in each case, subject party to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any a Material Contract, no party thereto is in breach, violation or default under, or has given to received written notice that it has breached, violated or defaulted under (nor does there exist any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which wouldcondition under which, with or without the lapse passage of time or the giving of notice or both, constitute would reasonably be expected to cause such a material breach breach, violation or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to ) any Material Contract. Neither the Company, nor any Subsidiary .
(d) Except as set forth in Schedule 3.15(d) of the CompanyDisclosure Schedule, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or is a written description valid, binding and enforceable obligation of each A2iA and/or its Subsidiary party to such Material Contract that and, to the Sellers’ Knowledge, the other party or parties thereto, in accordance with its terms and is not writingin full force and effect, in each case except to the extent enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally or by general equitable principles or by principles of good faith and fair dealing (regardless of whether enforcement is sought in equity or at law), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Neither Except as set forth on Schedule 3.11(a) (collectively, the “Material Contracts”), as of the date hereof, neither the Company nor any of its Subsidiaries are a party to is bound by any: :
(i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract other contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; Union;
(vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viiiii) stock purchase, profits interest, restricted stock, phantom equity, equity appreciation, stock option or similar plan; ;
(ixiii) Contract contract for the employment or engagement of any individual officer, director, employee, or independent contractor or other person on a full-time, part-time or consulting basis (A) providing for annual base compensation salary or fees in excess of one hundred thousand dollars ($100,000) per annum, and (B) 150,000 or which is not terminable with less than 30 days’ notice and without contain any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, provision entitling such officer, director, consultant employee, independent contractor or individual service provider as a result of the transactions contemplated by this Agreement; other person to any severance or other post-employment payments;
(xiiv) agreement or indenture relating to the borrowing of money any Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any material portion of the assets of the Company or any of its Subsidiaries; their assets;
(xiiv) guaranty of any obligation for borrowed money Indebtedness or other material guaranty; ;
(xiiivi) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); ;
(xivvii) lease agreements relating to any material acquisition or agreement disposition of (A) any business (whether by merger, consolidation or other business combination, sale of securities, sale of assets or otherwise) or (B) any material asset other than in the ordinary course of business by the Company or any of its Subsidiaries within the last five years;
(viii) (A) material agreements under which it is lessor the Company or any Company Subsidiary grants or obtains any license or other rights with respect to any data or Intellectual Property (other than (i) licenses of or permits any thirdwidely available unmodified commercial off-party to hold or operate any property, real or personal, for which the the-shelf software with total annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments license and other fees not in excess of three hundred $25,000, and fifty thousand dollars ($350,000ii) non-exclusive licenses granted to a customer or service provider in the aggregateordinary course of business in connection with the provision or receipt by the Company or any Company Subsidiary Subsidiaries of products and services), and (B) exclusive Intellectual Property licenses;
(ix) contract (A) relating to non-competition or which otherwise restricts the Company or any of its Subsidiaries from freely engaging in business anywhere in the world or (B) which limits the freedom of the Company or any of its Subsidiaries to hire, solicit or retain any Person;
(x) contract (or group of related contracts) for the purchase or sale of inventory, raw materials, commodities, supplies, goods, products, equipment or other personal property, or for the furnishing or receipt of services, in each case, the performance of which will extend over a period of more than one year and which provides for annual payments to or by the Company and/or its Subsidiaries in excess of $200,000; 33067829.14
(xvixi) contract under which the Company or any of its Subsidiaries incurs any Liability to pay any amount in respect of indemnification obligations, purchase price adjustment, earnout or otherwise in connection with any (x) acquisition or disposition of any business, assets or securities (other than purchase orders entered into the sale of inventory in the ordinary course of business), (y) merger, consolidation or other business combination or (z) series or group of related transactions or events of the type specified in clauses (x) and (y) above;
(xii) contract concerning a partnership, limited liability company or joint venture;
(xiii) contract that grants, or agrees to grant, any Contracts customer, client or other Person a right to “most favored nation” pricing terms;
(xiv) any contract under which the Company or any of its Subsidiaries incurs any Liability to any investment bank, broker, financial advisor, finder or other similar Person (including an obligation to pay any legal, accounting, brokerage, finder’s, or similar fees or expenses in connection with this Agreement or the transactions contemplated hereby);
(xv) any agency, dealer, distributor, sales representative, marketing or other similar contract;
(xvi) any contract with any supplier required to be listed on Schedule 5.22; Governmental Authority (including any contract or arrangement under which any the Company or any of its Subsidiaries has a “small business” or similar designation);
(xvii) material Contract with a Governmental Body; (xviii) Contracts any contract pursuant to which the Company or any of its Subsidiaries grants has, as of the date of this Agreement, incurred an ongoing Liability to a third partydefend, insure (or a third party grants obtain insurance for the benefit of) or indemnify any other Person;
(xviii) any contract which obligates the Company or any of its Subsidiaries to any minimum purchase, minimum sale or other similar obligation;
(xix) any contract between the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) one hand, and any of its or their respective Affiliates, on the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and other hand;
(xx) any contract involving the resolution or settlement agreement with of any third party actual or present threatened Action involving payments by or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.within the last five (5) years;
(xxi) any leases, licenses or other agreements (written or oral) pursuant to which a leasehold estate in, or the right to use or occupy, any real property or portion thereof, is granted or conveyed, including all amendments, extensions, renewals, guaranties and other agreements with respect thereto; or
(xxii) any other customer contract (or group of related contracts) the performance of which involves consideration in excess of $250,000 per year. 33067829.14
(b) Each The Company has made available to Purchaser a true and correct copy of all written Material Contract is in full force and effectContracts (and, and is if unwritten, a legal, valid and binding obligation description of the Company or a Subsidiary material terms of such unwritten Material Contracts) which are required to be listed on Schedule 3.11(a), including all amendments, modifications and supplements thereto.
(c) Neither the Company which is party thereto, andnor any of its Subsidiaries (nor, to the knowledge of the Company, any of the other parties thereto enforceable against thereto) is in default in any material respect under any Material Contract, nor has any event occurred that with the lapse of time, or the giving of notice, or both, would constitute a default under any Material Contract, and no notice with respect of the foregoing has been sent or received by the Company or any of its Subsidiaries. The Company and each of them its Subsidiaries have delivered all material deliverables due under all the Material Contracts to the applicable party or parties, and each of the remaining material deliverables not yet due under the Material Contracts is scheduled for reasonably timely delivery in accordance with its the respective requirements of such Material Contract. All Material Contracts constitute legal, valid and binding obligations of the Company or such Subsidiary, and are enforceable in accordance with their respective terms, in each caseexcept as enforceability may be limited by bankruptcy laws, subject to bankruptcy, insolvency, reorganization, moratorium and other similar Laws relating to or laws affecting creditors’ rights or to and general principles of equityequity affecting the availability of specific performance and other equitable remedies. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto its Subsidiaries has given to received from any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised (i) any termination rights with respect thereto, and no party has given written notice of any material dispute breach or default or that any such party intends to terminate, cancel or not renew any Material Contract, or (ii) any claim for damages or indemnification with respect to the products or performance of services pursuant to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. Schedule 5.14 contains an accurate and complete list of: 41
(a) Neither the Company nor any of its Subsidiaries are a party to any: (i) Contract containing non-competition each contract, agreement or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom commitment of the Company or any of its Subsidiaries to engage not otherwise listed in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant 5.15 to which the Company or any of its Subsidiaries grants assets or properties is bound and which requires total payments to a third party, or a third party grants to by the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of at least two hundred fifty thousand dollars ($50,000250,000.00) per annum, annually (other than spot crude and spot product contracts);
(Ab) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries Assets is bound and which has material ongoing obligations.a remaining term longer than one (1) year, which requires total payments by the Company of at least two hundred fifty thousand dollars ($250,000.00) during such terms and which is not terminable on thirty (30) or fewer days' notice without penalty;
(bc) containing covenants limiting the freedom of the Company to compete in any line of business or with any Person in any geographical area;
(d) calling for the proposed acquisition of any operating business or any assets outside the ordinary course of business and with a purchase price in excess of two hundred fifty thousand dollars ($250,000.00);
(e) to which the Company is a party or by which any of its Assets are bound relating to indebtedness for borrowed money, including capital leases, security agreements relating thereto and any amendment or waiver thereof;
(f) constituting vehicle leases;
(g) 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 other arrangement intended to assure the payment or performance of any obligation by a third party in excess of two hundred fifty thousand dollars ($250,000.00); and
(h) with Seller or any Affiliate of Seller, other than spot crude and spot product contracts (collectively items (a) through (h), other than contracts, agreements or commitments of the Company with Seller or any Affiliate of Seller which will be terminated at or prior to the Effective Time, the "Commitments"). Each Material Contract is in full force and effect, and Commitment is a legal, valid and binding obligation of the Company or a Subsidiary of Company, enforceable against the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to 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 similar Laws relating to or affecting creditors’ rights or to general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). Neither Except as set forth in Schedule 5.14, the Company is not, nor is any Subsidiary of the Company (as applicable) is other party thereto, in material default under any of the Commitments where such defaults would result, in the aggregate, in a Material ContractAdverse Effect. Except as set forth in Schedule 5.14, no party thereto since December 31, 1997, neither Seller nor the Company has given to received written notice of cancellation or termination of any Commitment from any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Sources: Stock Purchase Agreement (Tesoro Petroleum Corp /New/)
Contracts and Commitments. (a) Neither Schedule 4.09(a) (as further organized by the Company nor any applicable subsection of its Subsidiaries are this Section 4.09(a)) sets forth a party to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom list as of the Company or any date of its Subsidiaries this Agreement of each of the following types of contracts currently in effect to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000is a party (each, other than to inter-company loans or advances to any employee or director in connection with travela “Significant Contract” and, entertainment and related business expenses or other customary out-of-pocket expenses in collectively, the ordinary course of business; “Significant Contracts”):
(iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vii) collective bargaining agreement or Contract other agreement with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; union or labor organization;
(viiii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, Pension Plan, Welfare Plan or other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; Plan;
(viiiiii) stock purchasepurchase plan, stock option plan or similar plan; plan and each individual award agreement thereunder;
(ixiv) Contract for the contract with any officer, individual employee or other person on an employment of any individual on a full-time or consulting basis (A) providing for base fixed compensation in excess of one hundred thousand dollars ($100,000) 75,000 per annum;
(v) any change in control agreement with any employee or consultant, and (B) which is not terminable with less than 30 days’ notice and without including any liability agreement that provides for any payment to the Company an employee or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result upon consummation of the transactions contemplated by this Agreement; ;
(xivi) agreement any contract under which the Company or indenture any of its Subsidiaries has advanced (other than in the ordinary course of business) or loaned any amount to any of its shareholders, directors, officers or employees;
(vii) any contract that limits the incurrence of Indebtedness or the declaration or payment of dividends by the Company or any of its Subsidiaries;
(viii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other contracts relating to the borrowing of money or to mortgagingextension of credit (whether incurred, pledging assumed, guaranteed or otherwise placing a Lien (secured by any asset), other than a Permitted Lien(A) on any portion of the assets of the Company accounts receivables and payables, and (B) loans to or any of its intercompany indebtedness between Subsidiaries; ;
(xiiix) guaranty of any obligation for borrowed money lease, license or other material guaranty; (xiii) lease or agreement contract under which it is lessee or licensee of, or holds or operates any personal property property, real or personal, or any Intellectual Property owned by any other party, for which the annual rental or license fee exceeds one hundred thousand dollars $25,000, other than “shrink wrap” and similar generally available commercial end-user licenses to software that have an individual acquisition cost of $25,000 or less;
($100,000); (xivx) lease lease, license or agreement other contract under which it is lessor or licensor of or permits any third-third party to hold or operate any property, real or personal, or any Intellectual Property for which the annual rental or license fee exceeds one hundred thousand dollars $25,000, other than agreements with customers of the Company entered into in the ordinary course of business;
($100,000); xi) any contract (xvw) Contracts requiring containing “most favored nation” pricing terms or providing grants to any Person of any right of first offer or right of first refusal or exclusivity, (x) limiting the ability of the Company or any Subsidiary to engage in any business or to compete with a third party, (y) containing any non-solicitation, no-hire or similar provisions that restrict the Company or any of its Subsidiaries, or (z) containing any commitment of the Company or any of its Subsidiaries to meet any specified purchase or sale levels or containing any commitment by the Company or any of its Subsidiaries to a “take or pay” or similar provision;
(xii) any contract entered into during the three-year period ending on the date hereof relating to (i) the acquisition or disposition by the Company or any of its Subsidiaries of any business, division or product line or the capital stock or material assets of any other Person, in each case (A) for any capital expenditure that requires annual future payments consideration in excess of three hundred $100,000 or the equivalent in other currencies or (B) pursuant to which any liabilities or obligations of the Company or its Subsidiaries remain outstanding or (ii) any merger or business combination of the Company or any of its Subsidiaries;
(xiii) contract or group of related contracts with the same party for the purchase of products or services, under which the undelivered balance of such products and fifty thousand dollars services has a selling price in excess of $50,000 ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts );
(xiv) contract or group of related contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to the same party for the sale of products or services under which the Company undelivered balance of such products or services has a sales price in excess of $50,000 (other than sales orders entered into in the ordinary course of business);
(xv) any contract or commitment to become a party to any joint venture, partnership or similar arrangement (including any structured finance, special purpose or limited purpose vehicle or other “off-balance sheet” arrangement);
(xvi) any contract for the acquisition, disposition or exclusive license of its Subsidiaries grants to a third party, Intellectual Property by or a third party grants to the Company or any of its Subsidiaries, a license to ;
(xvii) any Intellectual Property, in each case contract involving consideration in excess the settlement of fifty thousand dollars ($50,000) per annum, other than any Legal Proceeding (A) Contracts for under which the license of commercially available, off-the-shelf software conditions have not been fully satisfied or (B) Contracts for that contain limitations on the non-exclusive license operations of Intellectual Property in the ordinary course Company or any of businessits Subsidiaries;
(xviii) any contract with a Governmental Body; or
(xix) except in connection any contract with the transactions contemplated by this Agreement (including, for the avoidance an Affiliate of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationsor any current or former controlling shareholder, officer or director of the Company or any of its Subsidiaries (excluding contracts that relate to such Person’s employment or other position (including as a director or officer) with the Company or its Subsidiaries, such as employment offer letters, except to the extent such contract should otherwise be disclosed under this Section 4.09(a)).
(bi) Each Material Significant Contract (x) is in full force and effecteffect with respect to the Company or its Subsidiaries, and as the case may be, and, to the knowledge of the Company, the other parties thereto, (y) is a legal, valid and legally binding obligation of the Company or a Subsidiary of its Subsidiaries, as the Company which is party theretocase may be, and, to the knowledge of the Company, of the other parties thereto thereto, and (z) is enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of or its Subsidiaries, as the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurredcase may be, and, to the knowledge of the Company, the other party parties thereto, in accordance with its terms, except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies, and (ii) the Company or one of its Subsidiaries, as the case may be, has performed all material obligations required to each of be performed by it to date under the Material Significant Contracts and is not in material default or material breach thereunder. No event has occurred which would, (with or without the lapse of time or the giving of notice notice, or both, constitute a material ) in breach or default in any material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect respect thereunder. To the Company’s knowledge, the other parties to any such Significant Contract have performed all material obligations required to be performed by them to date under the Significant Contracts and none of the other parties to any such Significant Contract is (with or any without the lapse of its Subsidiaries’ rights time or obligations underthe giving of notice, any Material Contract or of both) in breach or default in any material right or obligation respect thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. .
(c) The Company has made available to the Purchaser a true and correct copies copy of each Material Contract (all written Significant Contracts, together with all schedules, exhibits, amendments, waivers or other changes thereto, and a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretothe material terms of any oral Significant Contract.
Appears in 1 contract
Sources: Merger Agreement (Datalink Corp)
Contracts and Commitments. (a) Neither Except as filed as an exhibit to Company’s SEC Reports, set forth on Schedule 3.15, or except as contemplated by this Agreement, neither Company, nor the Company Subsidiaries, nor any of its Subsidiaries are the entities listed on Schedule 3.1(b) is a party to any: or bound by any oral or written contract, obligation or commitment of any type in any of the following categories:
(i) Contract containing nonagreements or arrangements that contain severance pay, understandings with respect to tax arrangements, understandings with respect to expatriate benefits, or post-competition employment liabilities or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; obligations;
(ii) Contract agreements or plans under which any of benefits will be increased or accelerated by the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment occurrence of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; , or under which the value of the benefits will be calculated on the basis of any of the transactions contemplated by this Agreement;
(xiiii) agreement agreements, contracts or indenture commitments currently in force relating to the borrowing disposition or acquisition of money or to mortgaging, pledging or otherwise placing a Lien (assets other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, or relating to an ownership interest in any Contracts with any supplier required to be listed on Schedule 5.22; corporation, partnership, joint venture or other business enterprise;
(xviiiv) material Contract with a Governmental Body; (xviii) Contracts pursuant to agreements, contracts or commitments for the purchase of materials, supplies or equipment, under which the aggregate payments for the past 12 months exceeded $250,000, which are with sole or single source suppliers;
(v) guarantees or other agreements, contracts or commitments under which Company or any of its the Company Subsidiaries grants to a third partyis absolutely or contingently liable for (A) the performance of any other Person, firm or corporation (other than Company or the Company Subsidiaries), (B) the whole or any part of the indebtedness or liabilities of any other Person, firm or corporation (other than Company or the Company Subsidiaries), or (C) indemnification obligations to officers and directors;
(vi) powers of attorney authorizing the incurrence of a third party grants to material obligation on the part of Company or the Company Subsidiaries;
(vii) agreements, contracts or commitments which limit or restrict (A) where Company or any of its Subsidiariesthe Company Subsidiaries may conduct business, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts the type or lines of business (current or future) in which they may engage, or (C) any acquisition of assets or stock (tangible or intangible) by Company or any of the Company Subsidiaries;
(viii) agreements, contracts or commitments, under which the aggregate payments or receipts for the non-exclusive license past 12 months exceeded $250,000, containing any agreement with respect to a change of Intellectual Property control of Company or any of the Company Subsidiaries;
(ix) agreements, contracts or commitments for the borrowing or lending of money, or the availability of credit (except credit extended by Company or any of the Company Subsidiaries to customers in the ordinary course of business; business and consistent with past practice);
(xixx) except in connection with the transactions contemplated by this Agreement (includingany hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the avoidance exchange of doubtcurrency; or
(xi) any agreement, contract or commitment otherwise required to be filed as an exhibit to a periodic report under the PreExchange Act, as provided by Rule 601 of Regulation S-Closing Restructuring)K promulgated under the Exchange Act. Notwithstanding the foregoing, Contracts relating Schedule 3.15 shall not include any agreements or contracts with respect to proprietary customer and sales information including the identity of and information regarding distributors, resellers, partners and end users and information regarding sales dollars, sales volumes and product revenues not publicly available. Each contract, agreement or commitment of the type described in this Section 3.15 is referred to herein as a “Company Contract” and each such Company Contract identified in Section 3.15(a)(i) through Section 3.15(a)(xi) is identified by name and date on Schedule 3.15(a) to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationsDisclosure Statement.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation Neither Company nor any of the Company or a Subsidiary of the Company which is party theretoSubsidiaries, and, nor to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto to a Company Contract, has breached, violated or defaulted under, or received notice alleging that such a material breach it has breached, violated or material default has occurreddefaulted under, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would(nor does there exist any condition under which, with or without the lapse passage of time or the giving of notice or both, constitute could reasonably be expected to cause such a material breach breach, violation or material default under), any Company Contract, other than any breaches, violations or defaults which have not had, or could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Each Company Contract is a valid, binding and enforceable obligation of Company and to the knowledge of Company, of the Company other party or any Subsidiary of parties thereto, in accordance with its terms, and in full force and effect, except where the Companyfailure to be valid, binding, enforceable and in full force and effect has not had, or permit any early terminationcould not reasonably be expected to have, modificationindividually or in the aggregate, acceleration a Company Material Adverse Effect and to the extent enforcement may be limited by applicable bankruptcy, insolvency, moratorium or cancellation of, or otherwise adversely affect other laws affecting the Company’s or any enforcement of its Subsidiariescreditors’ rights governing or obligations under, any Material by general principles of equity.
(d) An accurate and complete copy of each Company Contract (other than agreements or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute contracts with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract technology related information that is not writing), together with all amendments, modifications or supplements theretopublicly available) has been made available (including via ▇▇▇▇▇) to Parent.
Appears in 1 contract
Contracts and Commitments. (a) Neither Schedule 4.15 of the Disclosure Schedule lists all of the following types of agreements to which either Company nor is a party (collectively, “Material Contracts”):
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties;
(ii) any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which calls for performance over a period of more than one year, (B) which involves anticipated payments or receipts of more than $50,000, or (C) in which either Company has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any services, products or territory or has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(iii) any agreement concerning the establishment or operation of a partnership, joint venture or limited liability company;
(iv) any agreement (or group of related agreements) under which either Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which it has imposed (or may impose) a Lien on any of its Subsidiaries are a party to any: assets, tangible or intangible;
(iv) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict any agreement for the Company’s or disposition of any of its Subsidiaries’ business activity or limit the freedom significant portion of the assets or business of either Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses sales of products in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements any agreement for the acquisition of the assets or arrangements; (v) Contract business of any other entity (other than Franchise Agreementspurchases of inventory or components in the ordinary course of business);
(vi) that grants to any Person agreement concerning confidentiality, noncompetition or non-solicitation (other than confidentiality agreements with suppliers or customers or employees of either Company set forth in such Company’s standard terms and conditions of purchase or sale or standard form of employment letter or employment agreement, copies of which have previously been delivered to Buyer);
(vii) any employment agreement, consulting agreement, severance agreement (or agreement that includes provisions for the payment of severance) or personnel retention agreement, or any contractual guaranty of employment;
(viii) any material settlement agreement or settlement-related agreement (including any agreement in connection with which any employment-related claim is settled);
(ix) any agency, distributor, sales representative, franchise or similar agreement to which either Company is a party or by which either Company is bound;
(x) any agreement which contains any provisions requiring either Company to indemnify any other party in an amount which would reasonably be expected to exceed $250,000 (excluding indemnities contained in the Companies’ standard form agreements, copies of which have been provided to Buyer, for the sale or license of products or services);
(xi) any agreement that would reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of either Company as currently conducted;
(xii) any agreement that purports to create any obligation of any Affiliate of any Company that would reasonably be expected, subsequent to the Closing, to have the effect of prohibiting or impairing in any material respect the conduct of the business of Buyer or any of its Subsidiaries Affiliates as currently conducted; and
(A) most favored pricing provisions or (Bxiii) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative insurance provider which is not listed in Schedule 4.13.
(b) Seller has delivered to Buyer a complete and accurate copy of a group of employees relating each Material Contract (as amended to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than date). Except as set forth in Section 5.14(aSchedule 4.15: (i) or all Material Contracts are legal, valid, binding and enforceable and in full force and effect against the Disclosure Schedules relating Company that is the party thereto and, to Seller’s knowledge, against each other party thereto; (viiiii) stock purchaseneither of the Companies is in material breach or default or is now subject to any condition or event which has occurred and which, stock option after notice or similar plan; (ix) Contract for the employment lapse of any individual on a full-time or consulting basis (A) providing for base compensation both, would constitute a material default by such Company under any such Material Contract and, to Seller’s knowledge, no other party to any such Material Contract is in excess material breach or default or is now subject to any condition or event which has occurred and which, after notice or lapse of one hundred thousand dollars ($100,000) per annumtime or both, would constitute a material default by such party under any such Material Contract; and (Biii) which is not terminable with less than 30 days’ notice to Seller’s knowledge, none of the Material Contracts will be voided, revoked or terminated, or voidable, revocable or terminable, upon and without any liability to by reason of the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result consummation of the transactions contemplated by this Agreement; .
(xic) agreement or indenture relating to the borrowing Except for powers of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into attorney granted in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the there is no outstanding power of attorney granted by either Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationsPerson.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Neither Set forth in Section 4.11(a) of the Company nor any Disclosure Letter is a complete and accurate list of its Subsidiaries are a party each of the following Contracts with respect to any: the Company:
(i) a Contract containing non-competition that purports to limit, curtail or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom ability of the Company or any of its Subsidiaries to engage compete in any geographic area or line of business or restrict the Persons to compete with any Person; whom the Company may sell products or provide services that is binding on the Company post-Closing;
(ii) a Contract entered into by any ▇▇▇▇▇▇ Entity and binding on the Company post-Closing;
(iii) a Contract relating to or involving a partnership, franchise or a joint venture or similar arrangement;
(iv) a Contract for the acquisition, sale or lease of material properties or assets (by merger, purchase or sale of stock or assets) entered into since January 1, 2005;
(v) a Contract under which any of the Company has borrowed any money or its Subsidiaries has made advances issued any note, bond, indenture or loans to another Person in excess other similar evidence of one hundred thousand dollars $100,000Indebtedness or guaranteed Indebtedness of others, other than endorsements for the purpose of collection and Indebtedness to inter-company loans or advances to any employee or director trade creditors, in connection with traveleach case, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; ;
(iiivi) Contracts relating to Indebtedness; a mortgage, pledge, security agreement, deed of trust or other document, in each case granting any Lien on any asset or property of the Company, except for Permitted Liens;
(ivvii) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) a Contract (other than Franchise Agreements) with an insurance carrier that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions includes commissions or other consideration in connection with the sale or renewal of insurance policies or related products or services provided by the Company, in each case, accounting for net revenues to the Company in excess of $100,000 in fiscal year 2008 or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; grants to the Company “binding authority” (vias such terms are generally understood in the insurance industry) collective bargaining agreement or Contract in connection with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; Contracts with insurance carriers;
(viii) stock purchase, stock option a Contract (including all related Contracts) not otherwise disclosed under this Section 4.11(a) containing outstanding obligations or similar plan; consideration (ixwhether or not measured in cash) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars $50,000 in the aggregate or $25,000 in any twelve ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (12)-month period other than a Permitted Lien) on any portion of the assets of the Company Contracts with insurance carriers or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money retail brokers or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders agents entered into in the ordinary course of business;
(ix) with respect to the Business Employees or other service providers of the Company, an employment or consulting agreement, any Contracts with commission plan or agreement, severance agreement, retention agreement or “change of control” agreement;
(x) a lease or Contract under which the Company is lessee of, or holds or uses, any supplier required tangible personal property owned by a third party at an annual payment in excess of $25,000 per annum;
(xi) a Transferred Real Property Lease;
(xii) a Contract relating to be listed on Schedule 5.22; (xvii) material Contract the disposition or acquisition by the Company after the date of this Agreement of assets with a Governmental Body; fair market value in excess of $25,000;
(xviiixiii) Contracts any acquisition Contract pursuant to which the Company has “earn-out” or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Propertyother contingent purchase price obligations, in each case involving consideration case, that have not been paid in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating full prior to the acquisition or disposition date hereof; and
(whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xxxiv) any settlement commitment or agreement with to enter into any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationsforegoing.
(b) All of the foregoing (whether written or oral), including all amendments or modifications thereto, and all IP Licenses are sometimes collectively referred to as “Material Contracts”. The Company has made available to the Buyer true and correct copies of all Material Contracts (or descriptions thereof, in the case of oral contracts). Each Material Contract is in full force (or description) sets forth the entire agreement and effect, and is a legal, valid and binding obligation of understanding between the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of and the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equitythereto. Neither the The Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, (with or without the lapse of time or the giving of notice notice, or both, constitute a material ) in breach or material default of under any Material Contract and, to the Company or any Subsidiary Knowledge of the Company, no other party to any such Material Contract is (with or permit any early termination, modification, acceleration without the lapse of time or cancellation ofthe giving of notice, or otherwise adversely affect the Company’s both) in breach or any of its Subsidiaries’ rights or obligations under, any Material Contract or default thereunder. The Company is not aware of any material right event or condition which has occurred or exists which would cause the acceleration of any obligation thereunder. No or loss of any rights of any party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect or give rise to any Material Contractright of termination or cancellation thereof. Neither the Company, nor any Subsidiary All of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability Contracts are in full force and effect and are valid and binding obligations of the Company or any Subsidiary (to perform the extent binding obligations of the other parties thereto) enforceable in accordance with their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available terms except to the Purchaser true extent such enforcement may be limited by the Bankruptcy and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoEquity Exceptions.
Appears in 1 contract
Contracts and Commitments. Section 3.13 of the Disclosure Schedule sets forth a list, as of the date hereof, of all of the following material agreements, contracts and commitments to which the Company is a party or by which the Company or its assets are bound (except for purchase orders for inventory by the Company in the ordinary course of business which shall not be required to be provided by Seller or disclosed in the Disclosure Schedule but shall be a Material Contract for all other purposes hereunder to the extent described below) (each such agreement, contract or commitment of a type described below, including, without limitation all such agreements, contracts or commitments entered into after the date hereof, a “Material Contract”):
(a) Neither employment agreements, or severance agreements or employee termination arrangements that are not terminable at will by the Company nor without penalty;
(b) any change of its Subsidiaries are a party to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict control agreements with employees of the Company’s ;
(c) agreements, contracts, commitments or arrangements containing any of its Subsidiaries’ business activity or limit covenant limiting the freedom ability of the Company or any of its Subsidiaries Affiliates to engage in any line of business or to compete with any business or Person; ;
(iid) Contract under which agreements or contracts with the Company or any Affiliate of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant director or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets employee of the Company or any of its Subsidiaries; (xii) guaranty such Affiliates or any members of their respective immediate families or any Affiliate of any of the foregoing (other than employment, severance and change of control agreements covered by clause (a) or (b) above);
(e) agreements or contracts under which the Company has borrowed or loaned money, or any note, bond, indenture, mortgage, installment obligation or other evidence of Indebtedness for borrowed or loaned money or any guarantee of such Indebtedness;
(f) any agreements or contracts imposing a Lien on any material assets of the Company;
(g) joint venture agreements, partnership agreements or other material guaranty; agreements involving the sharing of profits;
(xiiih) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts leases pursuant to which material personal or real property is leased to or from the Company and which provide for payments by or any of its Subsidiaries grants to a third party, or a third party grants to the Company of more than $50,000 per year;
(i) guaranties, suretyships or any other contingent agreements of its Subsidiaries, a license to any Intellectual Property, in each case the Company involving consideration in excess underlying obligations of fifty thousand dollars (not less than $50,000;
(j) per annumany agreement, other than contract, commitment or arrangement relating to capital expenditures with respect to the Company and involving future payments which exceed $50,000 in any twelve (A12)-month period;
(k) Contracts for the license of commercially availableany requirements or take or pay contracts;
(l) any agreement, off-the-shelf software contract, commitment or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts arrangement relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line material assets (other than in the ordinary course of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Dateconsistent with past practice) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) any capital stock of any Person or line of business and enterprise; and
(xxm) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company contracts (other than those covered by clauses (a) through (j) above) pursuant to which the Company will receive or any pay in excess of its Subsidiaries $150,000 over the life of the contract. Buyer has material ongoing obligations.
(b) been given access to a true, correct, and complete copy of all Material Contracts, together with all supplements, amendments, waivers or other changes thereto. Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of agreement and is enforceable in accordance with its terms against the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge Knowledge of the Company, of against the other parties thereto enforceable against each of them in accordance with its termsthereto. With respect to all Material Contracts, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is not in material breach thereof or material default thereunder nor, to the Company’s Knowledge, is any other party to any such Material Contract in material breach thereof or material default thereunder, nor does any condition exist under any Material ContractContract or any event which, no party thereto has given to any other party thereto with the giving of notice alleging that or the lapse of time, would constitute such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretodefault.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nbty Inc)
Contracts and Commitments. (a) Neither Except as set forth in Schedule 2.5 and 2.16, neither the Company nor any of its Subsidiaries are (a) is a party to any: any contract, obligation, understanding or commitment (iwhether written or oral) Contract containing non-competition which involves a potential or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants actual commitment or otherwise containing covenants that purport aggregate payments to restrict or from the Company’s Company or any of its Subsidiaries’ business activity Subsidiaries to or limit from any third party in excess of $25,000, or which is otherwise material and not entered into in the freedom ordinary course of business, (b) has any employment contracts; stock redemption or purchase agreements; financing agreements; collective bargaining agreements; consulting or management services agreements; independent contractor agreements; or agreements with any current or former officers, directors, employees or shareholders of the Company or any of its Subsidiaries or persons or organizations related to engage or affiliated with any such persons, (c) has any contract or arrangement concerning directory publishing matters or billing and collection matters, (d) has any note, mortgage, agreement, contract or arrangement that limits the ability of the Company or any Subsidiary of the Company to compete in any line of business or to compete with any Person; other person, (iie) Contract under which has any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances contract relating to any employee obligation for borrowed money or director in connection with travelany guarantee or indemnification of or the granting of security for an obligation for borrowed money or any other obligation or liability, entertainment and related business expenses (f) has any contract relating to 911 or E911 services, interconnection or collocation arrangements, or other customary out-of-pocket expenses in the ordinary course of business; arrangements with any local exchange carrier, competitive access provider or other telecommunications carrier, (iiig) Contracts any contract relating to Indebtedness; (iv) joint venture, partnership, strategic alliance licenses to or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than from the Company or any Subsidiary of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company with respect to software or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of hardware used in the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets businesses of the Company or any of its Subsidiaries; or (xiih) guaranty any contract relating to any indemnity obligations of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries. Except as disclosed in Schedule 2.16, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of neither the Company pursuant to which the Company or nor any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force default under any contract, obligation, understanding or commitment and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge Knowledge of the Company, there is no state of the other parties thereto enforceable against each facts which upon notice or lapse of them time or both would constitute such a default. Except as set forth in accordance with its termsSchedule 2.16, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither neither the Company nor any Subsidiary of its Subsidiaries is a party to any contract or arrangement which is likely to have a material adverse effect on the assets, liabilities, properties, or financial condition of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of and its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract taken as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretowhole.
Appears in 1 contract
Contracts and Commitments. (a) Neither The Contract List sets forth each and every contract, agreement, arrangement, commitment or binding understanding to which the Company nor is a party which would reasonably be described by any of its Subsidiaries are the following (each, a party to any: “Material Contract”):
(i) any employment, contractor or consulting Contract containing non-competition with an employee or non-solicitation (excluding such covenants contained individual consultant, contractor or salesperson, or consulting, services or sales Contract with a firm or other organization in customary non-disclosure agreements) covenants excess of $50,000 per annum individually or otherwise containing covenants that purport to restrict $150,000 per annum in the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; aggregate;
(ii) Contract under which any Contract, Company Employee Plan or Plan, including, without limitation, any stock option plan, stock appreciation rights plan or stock purchase plan, any of the Company benefits of which will be increased, or its Subsidiaries has made advances or loans to another Person in excess the vesting of one hundred thousand dollars $100,000benefits of which will be accelerated, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in by the ordinary course occurrence of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries the transactions contemplated by this Agreement (A) most favored pricing provisions either alone or (B) upon the occurrence of any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(aadditional subsequent events) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment value of any individual of the benefits of which will be calculated on a full-time or consulting the basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; ;
(xiiii) agreement any fidelity or indenture surety bond or completion bond in excess of $50,000;
(iv) any lease of personal property or equipment having a value in excess of $50,000 individually or $150,000 in the aggregate;
(v) any Contract of indemnification or guaranty, but excluding Contracts of indemnification or guaranty with respect to the infringement by the Company products of the material Intellectual Property Rights of third parties that are contained in the Company’s written agreements with its customers that have been entered into in the ordinary course of business consistent with past practices substantially in the Company’s standard form of customer agreement;
(vi) any Contract relating to capital expenditures and involving future payments in excess of $50,000 individually or $150,000 in the aggregate;
(vii) any Contract relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of business consistent with past practices;
(viii) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit;
(ix) any purchase order or Contract obligating the Company to mortgagingpurchase materials or services at a cost in excess of $50,000 individually or $150,000 in the aggregate;
(x) any Contract containing covenants or other obligations granting or containing any current or future commitments regarding exclusive rights, pledging non-competition, “most favoured nations,” restriction on the operation or otherwise placing scope of its businesses or operations, or similar terms;
(xi) any Contract providing a Lien customer with refund rights;
(xii) any dealer, distribution, marketing, development or joint venture Contract which requires payment by the Company in excess of $50,000 individually or $150,000 in the aggregate;
(xiii) any sales representative, original equipment manufacturer, manufacturing, value added, remarketer, reseller, or independent software vendor, or other than a Permitted Lien) on any portion Contract for use or distribution of the assets products, Technology or services of the Company or any in excess of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); 50,000;
(xiv) lease or agreement under which it is lessor of or permits any third-party Contracts to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars Company is a party with respect to any Technology or Intellectual Property Rights, including without limitation any in-bound licenses, out-bound licenses and cross-licenses, but excluding ($100,000); i) with respect to out-bound licenses (xv1) Contracts requiring or providing for any capital expenditure non-disclosure agreements and (2) non-exclusive out-bound licenses with respect to the provision of Company’s products to end-users (in each case, pursuant to written agreements that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders have been entered into in the ordinary course of businessbusiness consistent with past practices), any Contracts and (ii) with any supplier required respect to be listed on Schedule 5.22; in-bound licenses, (xvii1) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants in-bound licenses for “freeware,” “free software,” “open source software” licensed to the Company or any and listed in Section 2.14(u) of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars this Agreement and ($50,0002) per annum, other than (A) Contracts for the license of commercially available, available off-the-shelf “shrink wrap” or “click wrap” software and the like that is generally available on nondiscriminatory pricing terms for a cost of not more than $50,000 for a perpetual license for a single user or (B) Contracts for the non-exclusive license of Intellectual Property workstation or $150,000 in the ordinary course of businessaggregate for all users and workstations; or
(xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xxxv) any settlement agreement with any third party other Contract that involves $50,000 individually or present $150,000 in the aggregate or former employee, officer, director or manager of more and is not cancelable by the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationswithout penalty within ninety (90) days.
(b) Each Except as set forth in Section 2.15(b) of the Disclosure Schedule The Company is in substantial compliance with and has not breached, violated or defaulted under, or received notice that it has breached, violated or defaulted under, any of the terms or conditions of any Material Contract (where such default has not been waived), nor does the Company have knowledge of any event that would constitute such a breach, violation or default with the lapse of time, giving of notice or both. Except as set forth in Section 2.15(b) of the Disclosure Schedule and to the knowledge of the Company, each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of is not subject to any material default thereunder nor is any party obligated to the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given pursuant to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is subject to any material default thereunder (where such default has not writingbeen waived), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Sources: Arrangement Agreement (Nuance Communications, Inc.)
Contracts and Commitments. (a) Neither Section 3.12(a) of the Company nor any Disclosure Schedule sets forth complete and ------------------------------------------ accurate lists of its Subsidiaries are a party to any: the following:
(i) Contract containing nonall real property and the location thereof and the description of any structures located thereon that are owned, leased or operated by the Company, together with the annual rental and unexpired lease term and identity of the owner of any real property leased;
(ii) all employment, consulting or agency agreements to which the Company is a party or is otherwise bound, other than oral employment agreements relating to at-competition will employees which are terminable on notice without payment of severance or non-solicitation other remuneration based on separation;
(excluding such covenants contained iii) except for standard vendor invoices for which payment is due at least thirty (30) days after the invoice date, each evidence of indebtedness, note, advance, instrument or agreement defining the terms on which any debt of, or guarantees by or letter of credit entered into by, the Company has been or may be issued, and all security and other agreements related thereto;
(iv) all contracts to which the Company is a party not denominated in customary non-disclosure agreementsU.S. dollars;
(v) covenants all contracts or otherwise agreements containing covenants that in any way purport to restrict the Company’s or any of its Subsidiaries’ 's business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; ;
(vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract all contracts providing for payments to or by any employeePerson based on sales, officerpurchases, directoror profits, consultant other than direct payments for goods or individual service provider as involving a result sharing of profits, losses, costs or liabilities by the Company with any other Person;
(vii) all powers of attorney of the transactions contemplated Company that are currently effective and outstanding;
(viii) all contracts entered into other than in the Ordinary Course of Business;
(ix) all contracts that contain or provide for an express undertaking by this Agreement; the Company to be responsible for consequential damages;
(x) all outstanding loans or advances (excluding advances for ordinary and necessary business expenses) by the Company to any of its officers, directors or stockholders or any member of the immediate families of such officers, directors or stockholders;
(xi) agreement except for standard purchase orders for which payment or indenture relating delivery is due within 30 days, all contracts, commitments or agreements to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of which the Company is a party or any is otherwise bound and which involve future payments, performance of its Subsidiariesservices or delivery of goods to or by the Company; and
(xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other partycontract, for which agreement or commitment that is material to the annual rental exceeds one hundred thousand dollars Business.
($100,000); (xivb) lease or agreement under which it is lessor The Company and, to the best of or permits any third-party the Company's Knowledge, all other parties to hold or operate any propertythe contracts, real or personalcommitments, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred instruments and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier agreements required to be listed on Section 3.12(a) of the Disclosure Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection have complied with the transactions contemplated by this Agreement (includingprovisions thereof in all material respects, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third no party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contractthereunder, and no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which wouldwhich, with or without but for the lapse passage of time or the giving of notice or both, would constitute a material breach or material default thereunder. Except as set forth on Section 3.11 of the Disclosure Schedules, no contract, commitment, instrument or agreement listed on Section 3.12(a) of the Disclosure Schedule requires the consent of any party thereto in order to consummate the transaction contemplated hereby, except for such consents already obtained.
(c) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed contracts with any Person having the contractual or statutory right to demand or require such renegotiation or no such Person has made written demand for such renegotiation.
(i) Except as set forth on Section 3.12(d) of the Disclosure Schedule, the Company is not a party to or bound by any contracts or commitments that are not cancelable by the Company on notice of not longer than 30 days without payment of any penalty or other fee;
(ii) Subject to obtaining any requisite consents of third parties, all of which have been identified in the Disclosure Schedules, the enforceability of the contracts and commitments referred to in Section 3.12(a) will not be affected in any manner by the execution and delivery of this Agreement or the consummation of the transaction contemplated hereby or by the other agreements referred to herein;
(iii) Except as set forth on Section 3.12(d) of the Disclosure Schedule, the Company is not a party to or bound by any contracts or commitments with officers, employees, agents, consultants, advisors, salesmen, sales representatives, distributors or dealers that are not cancelable by it on notice of not longer than 30 days and without liability, penalty or premium, or any Subsidiary agreement or arrangement providing for the payment of any bonus or commission based on sales or earnings; and
(iv) Except as set forth on Section 3.12(d) of the CompanyDisclosure Schedule, the Company is not a party to or permit bound by any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s employment agreement or any of its Subsidiaries’ rights other agreement that contains any severance or obligations undertermination pay, any Material Contract liabilities or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoobligations.
Appears in 1 contract
Contracts and Commitments. (a) Neither Section 5.19(a) of the Company nor any GNN Disclosure Letter lists all of its Subsidiaries are the following Contracts to which GNN is a party or by which GNN benefits or is subject (or by which its Assets are subject), all of which have been made available to any: WebMD for review:
(i) any Contract containing non-competition for the employment of any officer, director, employee or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants consultant that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; is not terminable at will;
(ii) any Contract under for the purchase, sale, production, supply, maintenance or support, whether on a continuing basis or otherwise, of goods or services of any type involving in any one case (or group of related Contracts) $100,000 or more;
(iii) any (A) Contract or license to which GNN is a party (1) with respect to any Intellectual Property of the Company GNN licensed or its Subsidiaries has made advances or loans transferred to another Person in excess of one hundred thousand dollars $100,000, any third party (other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses end user licenses in the ordinary course of business; ), or (iii2) Contracts relating pursuant to Indebtedness; (iv) joint venture, partnership, strategic alliance which any third party has licensed or similar agreements or arrangements; (v) Contract transferred any Intellectual Property to GNN (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions shrink wrap and similar widely available commercial end user licenses), or (B) other Material Contract related to Intellectual Property used by GNN in its business as currently conducted;
(iv) any exclusive rights, rights of first refusal, rights of first negotiation sales or other similar rights; vendor Contract or sub-contract involving in any one case (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; related Contracts) $100,000 or more;
(viiv) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) any Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into made in the ordinary course of business, including but not limited to any Contracts with management agreements;
(vi) any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants GNN's product or pages therein are linked with other web sites or pages therein; Contracts with web site hosts or Internet access providers; Contracts regarding data center hosting or security; Contracts relating to a advertising or sponsorships; Contracts providing for the use, display or distribution of third partyparty content, information or data or the provision of services through GNN's product; Contracts regarding continuing medical education programs; Contracts regarding the establishment or maintenance of networks, telecommunication links, virtual private networks or other similar non-public networks;
(vii) any Contracts that are, in the reasonable opinion of GNN, Materially adverse, onerous or otherwise harmful to GNN's business, operations or Assets;
(viii) any strategic alliance agreements;
(ix) any Contracts upon which the business, rights or Assets, or a third party grants condition, financial or otherwise, of GNN depends or which involve payments of greater than $50,000;
(x) any Contract currently in force relating to the Company disposition or acquisition by GNN after the date of this Agreement of any amount of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property Assets not in the ordinary course of businessbusiness or pursuant to which GNN has a Material ownership interest in any Person, joint venture or other business enterprise;
(xi) any joint marketing or development agreement currently in force under which GNN has continuing obligations to jointly market any product, technology or service;
(xii) any Contract currently in force to provide services or goods to any third party for any product or technology that is Material to GNN;
(xiii) any Contract currently in force to sell or distribute any GNN products, services or technology except agreements with distributors or sales representatives in the normal course of business cancelable without penalty upon 90 days or less notice and substantially in the form previously provided to WebMD; and
(xixxiv) any mortgage, indenture, guarantee, loans or credit agreements, security agreements or other agreements or instrument relating to Funded Debt.
(b) Except as to Contracts that are cancelable at will or upon 30 days' notice or less, (i) each of the Contracts described in this Section 5.19 is in full force and effect on the date hereof, except as the validity of such Contracts may be affected by actions, events or conditions involving only the other party thereto, none of which actions, events or conditions have, to the knowledge of GNN, occurred or exist, (ii) no material Default under any of the terms or conditions set forth in any of the Contracts to which GNN is a party or any document or instrument related thereto has occurred or been asserted by any party, (iii) there has been no actual, or to the knowledge of GNN, threatened termination, cancellation or limitation of any of the Contracts listed in Section 5.19(a) of the GNN Disclosure Letter and (iv) the continuation, validity and effectiveness of such Contracts, and all other Material terms thereof, will not be affected by the transactions contemplated by this Agreement. Except as set forth in Section 5.19(b) of the GNN Disclosure Letter, no Contract described in this Section 5.19 requires the consent of any party to its assignment in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationshereby.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Sources: Merger Agreement (Healtheon Corp)
Contracts and Commitments. (a) Neither Schedule 4.14(a) sets forth a list as of the date of this Agreement of each of the following types of written contracts to which any Acquired Company nor any of its Subsidiaries are is a party to any: party:
(i) Contract any employment agreement, employment contract or consulting agreement with any officer, employee or independent contractor of an Acquired Company pursuant to which an Acquired Company has future liability in excess of $100,000 per annum and is not terminable by it upon notice of sixty (60) calendar days or less for a cost of less than $100,000;
(ii) any collective bargaining agreement;
(iii) any partnership, joint venture or similar agreement or arrangement to which an Acquired Company is a party;
(iv) any agreement relating to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) within the last seven (7) years, or under which any Acquired Company has material obligations, other than any such agreement entered into by any Fund in the ordinary course of business consistent with past practice;
(v) any intellectual property or IT infrastructure license or agreement, other than Off-the-Shelf Software, that is material to the operations of the businesses of the Acquired Companies, including all contracts, licenses or other agreement relating to the Licensed Company Intellectual Property, Licensed Software or Out-Licensed Intellectual Property;
(vi) any contract containing non-competition exclusivity obligations or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s restrictions or any of its Subsidiaries’ business activity covenant not to (A) engage or limit the freedom of the Company or any of its Subsidiaries to engage compete in any line of business or to compete with in any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000geographic region, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) solicit for employment hire any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with Person granted by any other employee representative Acquired Company in favor of a group third party that, in the case of employees relating to wagesclause (B), hours and other conditions materially impairs the businesses of employment; the Acquired Companies or any successor thereto;
(vii) bonusany lease, pensionsupply agreement, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option services agreement or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis agreement under which (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the an Acquired Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates uses, any machinery, equipment, vehicle or other tangible personal property owned by any other a third party, (B) an Acquired Company procures any goods or services, or (C) an Acquired Company is a lessor or sublessor of, or makes available for use by any third party, any tangible personal property owned or leased by such Acquired Company, in any case which has future liability to such Acquired Company in excess of $100,000 per annum and is not terminable by it upon notice of sixty (60) calendar days or less for a cost of less than $100,000;
(viii) any agreement or contract under which an Acquired Company has borrowed any money or issued any note, indenture or other evidence of Indebtedness or guaranteed Indebtedness or liabilities of others (other than intercompany indebtedness, endorsements for the purpose of collection, or purchases of equipment or materials made under conditional sales contracts, in each case in the ordinary course of business);
(ix) any agreement with any Governmental Authority, other than any agreement relating to any Governmental Authority’s investment in any ALPS Advised Fund;
(x) any contract or group of related contracts for the delivery by the Acquired Companies of services to customers (including any management, advisory, agency, dealer, sales representative, distribution, marketing or other similar agreement) under which the annual rental exceeds one hundred thousand dollars aggregate annualized revenue of the Acquired Companies’ from such contracts or group of related contracts is in excess of $200,000;
($100,000); xi) any custody, transfer agent, shareholder service, administrative, accounting and other similar agreements to which an ALPS Advised Fund is a party, other than any management agreement;
(xii) any contract that contains (A) a “clawback” or similar undertaking requiring the contribution, reimbursement or refund by an Acquired Company of any prior distribution, return of capital or fees (whether performance based or otherwise) paid to any such Person or (B) a “most favored nation” or similar provision;
(xiii) any contract that contains (A) key person provisions pertaining to employees of any Acquired Company or (B) any of the following rights provided to an investor with respect to a client advised by an Acquired Company: (1) special withdrawal or redemption rights, (2) designation rights regarding advisory boards or similar provisions, (3) anti-dilution rights or (4) special notice or reporting requirements imposing any material burden or expense on the Acquired Companies;
(xiv) lease any placement agent agreement, or agreement any other contract for the distribution or sale of shares, units or interests of an ALPS Advised Fund to which any ALPS Advised Fund is a party;
(xv) any side letter with any investor in an ALPS Advised Fund;
(xvi) any contract or commitment for material capital expenditures;
(xvii) any contract under which it is, or may become, obligated to incur (A) any severance pay or (B) any bonus or other special compensation obligations which would become payable by reason of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby;
(xviii) any contract with any Affiliate (other than a contract solely between and among the Acquired Companies) of any Acquired Company;
(xix) any other agreement, contract, lease or license, in each case not included in Section 4.14(a)(i)-(xviii) or otherwise set forth on Schedule 4.11(b), Schedule 4.13(a), Schedule 4.14(a), Schedule 4.15 or Schedule 4.18, to which an Acquired Company is lessor a party or by or to which any of its assets are bound or permits any third-party subject which has future liability to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments such Acquired Company in excess of three hundred $200,000 per annum and fifty thousand dollars is not terminable by it upon notice of sixty (60) calendar days or less for a cost of less than $350,000200,000 (other than (a) warranty and indemnity obligations in the aggregate; ordinary course of business, (xvib) other than purchase orders entered into in the ordinary course of businessbusiness and (c) Leases).
(b) The Company has delivered to, any Contracts with any supplier or made available for inspection by, Parent a copy of each contract, lease, license or other agreement listed or required to be listed on Schedule 5.22; 4.14(a) (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubtcollectively, the Pre-Closing Restructuring“Material Contracts”), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the . The applicable Acquired Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge Knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such to a Material Contract has performed all material breach or material default has occurredobligations required to be performed by it under the Material Contracts, andand no Acquired Company or, to the knowledge Knowledge of the Company, the no other party to each thereto is in breach or default in any material respect under the terms of the any such Material Contracts is not in material default or material breach thereunder. No Contract, and no event has occurred which would, that (with or without the lapse of time or the giving of notice notice, or both, ) would constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of by any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Acquired Company, nor any Subsidiary of the Company, has delivered notice except for failures to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company perform or any Subsidiary such breach that would not reasonably be expected to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available be material to the Purchaser true Acquired Companies.
(c) The representations and correct copies warranties set forth in Part 4 of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoSchedule B hereto are hereby incorporated by reference.
Appears in 1 contract
Sources: Merger Agreement (DST Systems Inc)
Contracts and Commitments. (a) Except as set forth on Schedule 2.13(a), or except as contemplated by this Agreement, neither the Company, nor the Company Subsidiaries is a party to or bound by any oral or written contract, obligation or commitment of any type in any of the following categories:
(i) agreements or arrangements that contain severance pay, understandings with respect to tax arrangements, understandings with respect to expatriate benefits, or post-employment liabilities or obligations;
(ii) agreements or plans under which benefits will be increased or accelerated by the occurrence of any of the transactions contemplated by this Agreement, or under which the value of the benefits will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iii) agreements, contracts or commitments currently in force relating to the disposition or acquisition of assets other than in the ordinary course of business, or relating to an ownership interest in any corporation, partnership, joint venture or other business enterprise;
(iv) agreements, contracts or commitments for the purchase of materials, supplies or equipment, under which the aggregate payments for the past 12 months exceeded $250,000, which are with sole or single source suppliers;
(v) guarantees or other agreements, contracts or commitments under which the Company or any of the Company Subsidiaries is absolutely or contingently liable for (A) the performance of any other Person, firm or corporation (other than the Company or the Company Subsidiaries), (B) the whole or any part of the indebtedness or liabilities of any other Person, firm or corporation (other than the Company or the Company Subsidiaries), or (C) indemnification obligations to officers and directors;
(vi) powers of attorney authorizing the incurrence of a material obligation on the part of the Company or the Company Subsidiaries;
(vii) agreements, contracts or commitments which limit or restrict (A) where the Company or any of the Company Subsidiaries may conduct business, (B) the type or lines of business (current or future) in which they may engage, or (C) any acquisition of assets or stock (tangible or intangible) by the Company or any of the Company Subsidiaries;
(viii) agreements, contracts or commitments, under which the aggregate payments or receipts for the past 12 months exceeded $250,000, containing any agreement with respect to a change of control of the Company or any of the Company Subsidiaries;
(ix) agreements, contracts or commitments for the borrowing or lending of money, or the availability of credit (except credit extended by the Company or any of the Company Subsidiaries to customers in the ordinary course of business and consistent with past practice); or
(x) any hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the exchange of currency. Each contract, agreement or commitment of the type described in this Section 2.13 is referred to herein as a “Company Contract” and each such Company Contract identified in Section 2.13(a)(i) through Section 2.13(a)(x) is identified by name and date on Schedule 2.13(a) to the Company Schedules.
(b) Neither the Company nor any of its Subsidiaries are a party the Company Subsidiaries, nor to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom Knowledge of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto to a Company Contract, has breached, violated or defaulted under, or received notice alleging that such a material breach it has breached, violated or material default has occurreddefaulted under, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would(nor does there exist any condition under which, with or without the lapse passage of time or the giving of notice or both, constitute could reasonably be expected to cause such a material breach breach, violation or material default under), any Company Contract, other than any breaches, violations or defaults which have not had, or could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company.
(c) Each Company Contract is a valid, binding and enforceable obligation of the Company or any Subsidiary and to the Knowledge of the Company, of the other party or permit any early terminationparties thereto, modificationin accordance with its terms, acceleration or cancellation ofand in full force and effect, except where the failure to be valid, binding, enforceable and in full force and effect has not had, or otherwise adversely affect could not reasonably be expected to have, individually or in the Company’s aggregate, a Material Adverse Effect on the Company and to the extent enforcement may be limited by applicable bankruptcy, insolvency, moratorium or any other laws affecting the enforcement of its Subsidiariescreditors’ rights or obligations under, any Material by general principles of equity.
(d) An accurate and complete copy of each Company Contract (other than agreements or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute contracts with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, technology related information that is not publicly available) has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has been made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoParent.
Appears in 1 contract
Contracts and Commitments. (a) Neither the Company Except as set forth in Schedule 3.17(a) hereto, Shaba does not have, nor any of its Subsidiaries are a is Shaba party to any: or bound by:
(i) Contract containing non-competition any consulting or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants sales agreement, contract or otherwise containing covenants that purport commitment under which any firm or other organization provides services to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; Shaba;
(ii) Contract under which any fidelity or surety bond or completion bond;
(iii) any agreement of the Company indemnification or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, guaranty (other than to inter-company loans nondisclosure agreements);
(iv) any agreement, contract, commitment, transaction or advances to series of transactions for any employee or director in connection with travel, entertainment and related business expenses or purpose other customary out-of-pocket expenses than in the ordinary course of business; (iii) Contracts Shaba's business relating to Indebtedness; (iv) joint venture, partnership, strategic alliance capital expenditures or similar agreements commitments or arrangements; long term obligations in excess of $10,000;
(v) Contract any agreement, contract or commitment relating to the disposition or acquisition of assets or any interest in any business enterprise outside the ordinary course of Shaba's business (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; );
(xivi) agreement any mortgages, indentures, loans or indenture credit agreements, security agreements or other arrangements or instruments relating to the borrowing of money or extension of credit, including guaranties referred to mortgaging, pledging in clause (iii) hereof;
(vii) any purchase order or otherwise placing a Lien (other than a Permitted Lien) on any portion contract for the purchase of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money inventory or other material guarantymaterials involving $10,000 or more;
(viii) any distribution, joint marketing or development agreement;
(ix) any assignment, license or other agreement with respect to any form of intangible property; or
(xiiix) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other partyagreement, contract or commitment that involves $10,000 or more (excluding any agreement for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders professional services entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition DateAgreement) or the future acquisition or disposition is not cancelable without penalty in excess of $10,000 within thirty (whether by merger30) days (collectively, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations(i) through (x) above shall be known as "Contracts").
(b) Each Except as would not individually or in the aggregate have a Material Contract is Adverse Effect on Shaba, all such Contracts are valid and binding on Shaba and are in full force and effect, effect and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each Shaba in accordance with their respective terms. Except as disclosed in Schedule 3.17(b) hereto, no approval or consent of, or notice to any Person the failure of them which to obtain would have individually or in the aggregate a Material Adverse Effect is needed in order that such Contracts shall continue in full force and effect in accordance with its termsterms without penalty, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to acceleration or affecting creditors’ rights or to general principles of equity. Neither early termination following the Company nor any Subsidiary consummation of the Company (as applicable) Merger. Except to the extent any of the following would not individually or in the aggregate have a Material Adverse Effect, Shaba is not in material violation of, breach of or default under any Material Contractsuch Contract nor, no party thereto has given to the Members' knowledge, is any other party thereto notice alleging that to any such a material breach or material default has occurredContract. Except as set forth in Schedule 3.17(b) hereto, and, to the knowledge of the Company, the other party to each of the Material Contracts Shaba is not in material violation or breach of or default or material breach thereunder. No event has occurred which wouldunder any such Contract (including leases of real property) relating to non-competition, with or without the lapse indebtedness, guarantees of time or the giving indebtedness of notice or bothany other person, constitute a material breach or material default of the Company or any Subsidiary of the Companyemployment, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretocollective bargaining.
Appears in 1 contract
Contracts and Commitments. (a) Neither Section 3.12(a) of the Disclosure Schedule lists all of the following Company nor any of its Subsidiaries are a party to any: Contracts:
(i) Contract containing noncollective bargaining agreements and any other Contracts with any labor unions or employee representative body;
(ii) Contracts for the employment or engagement of any officer, employee or other Person on a full-competition time, part-time, consulting or non-solicitation other basis that either: (excluding such covenants contained A) provide severance obligations upon termination; (B) provide for the payment of any cash or other compensation or benefits as a result of the execution of this Agreement or the consummation of any of the Contemplated Transactions; or (C) cannot be terminated without cause or reason upon 30 days’ or less notice and without any reasonable expectation of liability for any Acquired Company in customary non-disclosure connection therewith;
(iii) agreements, promissory notes, security agreements, pledge agreements or similar agreements for Indebtedness;
(iv) covenants leases, subleases or otherwise containing covenants licenses, either as lessee, sublessee or licensee or as lessor, sublessor or licensor, of any real property, personal property or intangibles, including capital leases;
(v) Contracts or series of related Contracts with customers, suppliers and vendors of each Acquired Company for the purchase or sale of goods or services involving annual payments in excess of $300,000, which cannot be canceled by any Acquired Company without payment or penalty upon notice of 30 days or less, or whose unexpired term as of the date of this Agreement exceeds one year;
(vi) Contracts that purport involve any sole sourcing, “requirements” commitments, exclusive supply, or minimum purchase obligations (A) of any other Person to restrict the any Acquired Company or (B) of any Acquired Company to any other Person;
(vii) Contracts that involve any “most favored nation,” committed price reduction, or similar obligations (A) of any other Person to any Acquired Company or (B) of any Acquired Company to any other Person;
(viii) Contracts that involve any (A) grant of, or obligation to grant, to any Acquired Company, any exclusive license or other exclusive rights or (B) grant of, or obligation to grant, to any Person by any Acquired Company, any exclusive license or other exclusive rights;
(ix) Contracts of agency, sales representation, distribution or franchise that cannot be canceled by any Acquired Company without payment or penalty upon notice of 30 days or less, and any powers of attorney or similar grants of agency;
(x) Contracts restricting in any manner any Acquired Company’s right or any right of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or employee set forth on Schedule 3.11(b)(xi): (A) to compete with any Person; (iiB) Contract under to sell goods or services to any Person; (C) to purchase goods or services from any Person; or (D) to solicit for employment or hire any Person;
(xi) Contracts to which any of the Acquired Company is a party and which restrict in any manner any other Person’s right: (A) to compete with any Acquired Company; (B) to sell goods or its Subsidiaries has made advances services similar to those sold by any Acquired Company; (C) to purchase goods or loans services from any Acquired Company; or (D) to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans solicit for employment or advances to hire any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course consultant of business; any Acquired Company;
(iiixii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions the acquisition or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment disposition of any individual on a full-time business, assets or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in securities outside the ordinary course of business, (B) any joint venture involving any Acquired Company or any of its Affiliates or (C) any equity or debt investment in or any loan to any other Person;
(xiii) IP Licenses (other than any Inbound Licenses that is a shrink-wrap or click-through license or a license for “off the shelf” software that is generally available on standard, non-negotiated commercial terms for less than $10,000 annually);
(xiv) Contracts pursuant to which any Acquired Company receives services free of charge (or at a substantial discount) that would reasonably be expected to be valued at $10,000 or greater;
(xv) insurance policies disclosed on Section 3.19(a) of the Disclosure Schedule; and
(xvi) each with any supplier amendment, supplement and modification in respect of any of the foregoing.
(b) All of the Company Contracts, agreements and instruments listed or required to be listed on Section 3.12(a) of the Disclosure Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubtcollectively, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise“Material Contracts”) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, are valid and binding obligation of and enforceable against the applicable Acquired Company or a Subsidiary of and the other parties thereto in accordance with their terms, subject only to the Enforceability Exception. Each Acquired Company which is party thereto, has performed in all material respects all obligations required to be performed by it and, to the knowledge Knowledge of the Company, of the other parties thereto enforceable against each of them is not in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under or breach of, nor in receipt of any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, andwritten claim or, to the knowledge Knowledge of the Company, the any other party to each claim, of the such default under or breach of, any Material Contracts is not in material default or material breach thereunderContract. No event has occurred which would, (with or without the lapse passage of time or the giving of notice or both) would result in a default under or breach of, constitute a material breach or material default permit the termination, modification or acceleration of any obligation of any Acquired Company under, any Material Contract. To the Company or any Subsidiary Knowledge of the Company, there is no default under, or permit any early termination, modification, acceleration breach or cancellation or anticipated cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract by the other party or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect parties thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available Made Available to the Purchaser true an accurate and correct copies complete copy of each of the written Material Contract (or a written description of each such Material Contract that is not writing)Contracts, together with all amendments, modifications or extensions, guarantees and other binding supplements thereto, and an accurate description of each of the verbal Material Contracts, if any, together with all amendments, waivers or other changes thereto, in each case, in effect as of the date of this Agreement. Immediately following the consummation of the Contemplated Transactions, each of the Material Contracts will be in full force and effect and will be valid, binding and enforceable in accordance with their terms (subject only to the Enforceability Exception) and not be subject to any claims, charges, set-offs or defenses as a result of the consummation of any of the Contemplated Transactions.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (American Public Education Inc)
Contracts and Commitments. Section 3.21 of the Company Disclosure Schedule contains a complete and accurate list of all contracts and agreements (including, without limitation, oral and informal arrangements, but excluding agreements between the Company and any Company Subsidiary or among Company Subsidiaries) of the following categories to which the Company or any Company Subsidiary is a party or by which it is bound as of the date of this Agreement.
(a) Neither labor contracts or collective bargaining agreements;
(b) material manufacturing, distribution, franchise, license, sales, agency or advertising contracts;
(c) contracts which require the Company nor any payment in excess of its Subsidiaries are a party to any: $50,000 per year for (i) Contract containing non-competition the purchase of inventory, materials, supplies or non-solicitation equipment which are not cancelable (excluding such covenants contained without material penalty, cost or other liability) within one (1) year, (ii) management, consulting, service or other similar contracts, (iii) advertising or marketing agreements or arrangements, and (iv) other contracts made in customary non-disclosure the ordinary course of business involving annual expenditures or liabilities in excess of $50,000 which are not cancelable (without material penalty, cost or other liability) within ninety (90) days, other than purchase orders made in the ordinary course of business consistent with past practice;
(d) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments proving for the lending of money, whether as borrower, lender or guarantor;
(e) covenants or otherwise contracts (other than Leases) containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit limiting the freedom of the Company or any of its Subsidiaries Company Subsidiary to engage in any line of business or to compete with any Person; Person or operate at any location;
(iif) Contract under which any of the Company joint venture or its Subsidiaries has made advances partnership agreements or loans to another Person in excess of one hundred thousand dollars $100,000joint development or similar agreements;
(g) agreement, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses contract or other customary out-of-pocket expenses in the ordinary course of business; arrangement with (iiii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any affiliate of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lienany Company Subsidiary) on or (ii) any portion of the assets current or former officer, director or employee of the Company or any Company Subsidiary or any affiliate of its Subsidiaries; (xii) guaranty the Company or of any obligation for borrowed money Company Subsidiary (other than non-compete or other intellectual property agreements);
(h) material guaranty; (xiii) lease or similar agreement with any person under which it (i) the Company or any Company Subsidiary is lessee of, or holds or operates uses, any personal machinery, equipment, vehicle or other tangible property owned by any person or (ii) the Company or any Company Subsidiary is a lessor or sublessor of, or makes available for use by any person, any tangible personal property owned or leased by the Company or any Company Subsidiary, in any such case which has an aggregate future liability or receivable, as the case may be, and is not terminable by the Company or such Company Subsidiary by notice of not more than sixty (60) days;
(i) contracts or other party, for which the annual rental exceeds one hundred thousand dollars instruments ($100,000); (xivincluding so-called take-or-pay or keepwell agreements) lease or agreement under which it is lessor (i) any person has directly or indirectly guaranteed indebtedness, liabilities or obligations of the Company or permits any third-party to hold Company Subsidiary or operate (ii) the Company or any propertyCompany Subsidiary has directly or indirectly guaranteed indebtedness, real liabilities or personal, for which the annual rental exceeds one hundred thousand dollars obligations of any person ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) each case other than purchase orders entered into endorsements for the purpose of collection in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; );
(xviij) material Contract with a Governmental Body; (xviii) Contracts pursuant to contracts or other instruments under which the Company or any Company Subsidiary has, directly or indirectly, made any advance, loan, extension of its Subsidiaries grants to a third partycredit or capital contribution to, or a third party grants to the Company or other investment in, any of its Subsidiaries, a license to any Intellectual Property, in each case person involving consideration aggregate payments in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of excluding agreements between the Company pursuant to which the and a Company Subsidiary or any of its Subsidiaries has material ongoing obligations.between Company Subsidiaries;
(bk) Each Material Contract is in full force and effectmortgage, and is pledge, security agreement, deed of trust or other instrument granting a legal, valid and binding obligation of the Company lien or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor encumbrance upon any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default property of the Company or any Subsidiary Company Subsidiary;
(l) agreement or instrument involving aggregate payments in excess of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or $50,000 providing for indemnification of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute person with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty liabilities relating to any Material Contract requesting an amendment to such contract regarding the inability current or former business of the Company or any Subsidiary to perform their respective obligations under such Company Subsidiary, or any predecessor person;
(m) contract as a result for the acquisition, sale or lease of COVID-19 any assets or capital stock or other force majeure eventsownership interests outside the ordinary course of the business or involving aggregate payments in excess of $50,000 or to effect any merger of the Company or any Company Subsidiary; and
(n) any exclusive retainer agreement or arrangement with attorneys, accountants, actuaries, appraisers, investment bankers or other professional advisors.
(o) any agreements or arrangements with respect to telecommunications, web hosting or similar or related matters involving payments in excess of $50,000. The True copies of the written contracts identified in Section 3.21 of the Company has Disclosure Schedule have been made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoParent.
Appears in 1 contract
Sources: Merger Agreement (Tickets Com Inc)
Contracts and Commitments. (a) Neither Schedule 4.09(a) sets forth a true and complete list of each of the following Contracts (including any amendment, supplement or modification thereto) to which a Group Company nor any of its Subsidiaries are is a party or bound (or that a Group Company has expressly assumed by written Contract) (each Contract listed, or required to any: be listed, thereon, a “Material Contract”):
(i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien an Encumbrance (other than a Permitted Lien) on any asset or portion of the assets an asset of the Group Companies;
(ii) Contracts under which (A) any Person has directly or indirectly guaranteed any liabilities or obligations of a Group Company or (B) a Group Company has guaranteed any of its Subsidiaries; (xii) guaranty liabilities or obligations of any obligation for borrowed money other Person;
(iii) leases or other material guaranty; (xiii) lease or agreement agreements under which it is lessee of, or holds or operates operates, any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars $50,000 ($100,000excluding the Real Property Leases); ;
(xiviv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars Real Property Leases;
($100,000); (xvv) Contracts requiring or providing groups of related Contracts with the same party for any capital expenditure the purchase of products or services that requires provide for annual future payments by a Group Company in excess of three hundred and fifty thousand dollars $250,000 during the trailing twelve (12) month period ending on the date of the Latest Balance Sheet;
(vi) Contracts or groups of related Contracts with a customer that provide annual net revenues (based on the trailing twelve (12) month period ending on the date of the Latest Balance Sheet) to the Group Companies in excess of $350,000250,000;
(vii) Company IP Agreements;
(viii) Contracts that (A) include a covenant not to compete or that limit or purport to limit the ability of a Group Company to engage or compete in the aggregate; (xvi) other than purchase orders entered into any line of business, acquire any entity or compete with any Person or in any geographic area or during any period of time, except for any covenant included in an agreement made in the ordinary course of businessbusiness that is not material to the business of the Group Companies, individually or as a whole, (B) require the Group Companies to deal exclusively or on a “sole source” basis with another Person or (C) require referrals of business or require the Group Companies to make available materials, supplies, goods, services, equipment or other assets to any Contracts with any supplier required to be listed Person on Schedule 5.22; a priority, equal or exclusive basis or contain most favored nations obligations or restrictions binding on the Group Companies;
(xvii) material Contract with a Governmental Body; (xviiiix) Contracts pursuant relating to the formation, creation, governance or control of any joint venture, partnership or other similar arrangement to which a Group Company is party;
(x) Contracts relating to the Company acquisition or disposition of any capital stock or other equity interests, or any business or product line of its Subsidiaries grants any Person, for aggregate consideration in excess of $250,000;
(xi) Contracts relating to a third party, the settlement of any Action or a third party grants to Order involving the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ;
($50,000) per annum, other than (Axii) Contracts for the license of commercially availablebetween a Group Company, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by mergerone hand, sale of equityand any Seller, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director director, manager, equityholder, member or manager Affiliate of a Seller (other than the Group Companies), on the other hand;
(xiii) Contracts that (A) are collective bargaining, collective, company, shop or similar agreements or other Contracts with any labor organization, works council, union or employee association (each, a “Collective Bargaining Agreement”); (B) are for the employment of any Participant on a full time, part-time, consulting or other basis providing annual compensation in excess of $100,000; or (C) provide for payment upon the severance of any Participant;
(xiv) Contracts not otherwise listed above which would reasonably be expected to require payments to or from a Group Company from or to a third party in excess of $100,000 per annum and which is not terminable by either the counterparty or the applicable Company or its Subsidiary on notice of ninety (90) calendar days or less without a premium or penalty; and
(xv) any outstanding written or otherwise binding commitment to enter into any Contract of the Company pursuant to which type described in the Company or any of its Subsidiaries has material ongoing obligationsimmediately preceding subsections (i)-(xiv).
(b) Each Material Contract (assuming due power and authority of, and due execution and delivery by, the other party or parties thereto and subject to the effects of applicable bankruptcy, clarification, insolvency, fraudulent conveyance, moratorium, receivership, or other Laws relating to or affecting creditors’ rights generally and to general principles of equity, whether considered at Law or in equity) is valid and binding on each Group Company that is a party thereto, as applicable, and is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, is valid and binding on the other party or parties thereto.
(c) (i) As of the other parties thereto enforceable against each date of them in accordance with its termsthis Agreement, in each caseno Group Company has violated or breached, subject to bankruptcyor committed any default under, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract; (ii) to the knowledge of the Company, as of the date of this Agreement, no party thereto other Person has given to violated or breached, or committed any other party thereto notice alleging that such a material breach default under, any Material Contract; and (iii) as of the date of this Agreement, no event or material default circumstance has occurred, andoccurred and is continuing through any actions or inactions of the Group Companies or, to the knowledge of the Company, the any other party to each Person that would result in a violation or breach of any of the provisions of any Material Contracts is not in material default Contract, or material breach thereunder. No event has occurred which would, with notice or without the lapse of time or the giving time, result in termination of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of would cause or permit the acceleration of, or other change to, any material right or obligation thereunder. No party to under any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice or the loss of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretobenefit thereunder.
Appears in 1 contract
Sources: Share Purchase Agreement (Factset Research Systems Inc)
Contracts and Commitments. (a) Neither Except as set forth on Schedule 4.11(a), the Company nor is not party or subject to or bound by any of its Subsidiaries are the following (a party Contract or other item responsive to any: any of the following categories (whether or not set forth on Schedule 4.11(a)), a “Material Contract”):
(i) Contract containing non-competition any Contracts with Material Customers or non-solicitation Material Suppliers;
(ii) any broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts which have required payments by the Company in excess of $20,000 in the prior twelve months or on their terms require payments by Company of $20,000 or more annually;
(iii) any outstanding loan, advance or investment by the Company to any Person (excluding advances to employees for de minimis business expenses made in the ordinary course of business, consistent with past practice that are not material, individually or in the aggregate);
(iv) any Contracts with independent contractors or consultants (or similar arrangements) which have payment obligations of the Company in excess of $20,000 annually;
(v) all Contracts granting any Person an option or a right of first refusal, first offer or similar preferential right to purchase any of the Equity Interests, assets or services of the Company;
(vi) any Contract granting any Person “most favored nation”, “most favored customers”, or similar price or term protections or other rights obligating the Company to change the conditions of such covenants contained in customary non-disclosure agreementsContract based on better terms of conditions provided to other Persons;
(vii) covenants any Contracts with any Governmental Entity;
(viii) any Contracts that limit or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom ability of the Company or any of its Subsidiaries managers, officers or employees to (A) own, operate, sell, transfer, pledge or otherwise dispose of or encumber any of its assets or services or (B) compete or engage in any line of business or to compete or engage in any business with any Person; Person or in any geographic area or during any period of time;
(iiix) Contract under which any of joint venture, partnership or similar Contracts;
(x) any Contracts for the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000sale, other than to inter-company loans or advances to any employee or director in connection with travelassignment, entertainment and related business expenses lease, license or other customary outdisposition of Company’s assets, except for (a) non-ofexclusive licenses granted to end-pocket expenses user customers for the sale, lease or purchase of Company Software in the ordinary course of business; business consistent with past practice, and (iiib) Contracts granting non-exclusive licenses to business software and off-the-shelf software, in each case, that is commercially available on standard terms from third-party vendors and require payments by the Company less than $20,000 in the prior twelve months or on their terms require payments by Company of $20,000 or less annually;
(xi) any Contracts entered into relating to Indebtedness; (iva) joint venturethe acquisition or disposition of any business (whether by merger, partnershipsale of Equity Interests, strategic alliance sale or similar assets or otherwise) or material portion of any assets or property (real or personal, tangible or intangible), or (b) the sale, transfer, issuance, redemption or disposition of any Equity Interests of any other Person;
(xii) any powers of attorney with respect to the Company or the Business;
(xiii) any written Contract with any employee entitled to receive compensation in excess of $50,000 annually that is not terminable at-will and all collective bargaining agreements or arrangements; other Contracts with any labor organization, union or association;
(vxiv) Contract (other than Franchise Agreements) that grants to any Person other than Contracts providing for any severance, “stay pay” or termination fee or payment with any manager, officer or employee or consultant of the Company or any of its Subsidiaries (A) most favored pricing provisions fee, penalty, or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating payment related to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any an individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability services to the Company that will be triggered in whole or its Subsidiaries; (x) Contract providing for payments to any employeein part, officerwith or without a subsequent event, director, consultant or individual service provider as a result by consummation of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); ;
(xv) any Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) concerning confidentiality, including business associate agreements, other than purchase orders any Contract with the Company’s customers entered into in the ordinary course of businessbusiness or with prospective purchasers of the Company;
(xvi) any lease or similar agreement under which the Company is the lessor of, or makes available for use by any third Person, any Contracts with any supplier required to be listed on Schedule 5.22; tangible personal property owned by the Company;
(xvii) material Contract with a Governmental Body; (xviii) any Contracts pursuant providing licenses by or to which the Company or of any Proprietary Rights of its Subsidiaries grants to a any third party, including any settlement, development, hosting or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annumother similar services Contracts, other than (Aa) Contracts non-exclusive licenses granted to end-user customers for the license sale, lease or purchase of commercially availableCompany Software in the ordinary course of business consistent with past practice, and (b) non-exclusive licenses to business software and off-the-shelf software or (B) Contracts for software, in each case, that is commercially available on standard terms from third-party vendors and require payments by the non-exclusive license of Intellectual Property Company less than $20,000 in the ordinary course prior twelve months or on their terms require payments by Company of business; $20,000 or less annually;
(xviii) any Contracts with any Insider, other than any Transaction Documents;
(xix) except in connection any Contract with the transactions contemplated by this Agreement (includingany professional employer organization, for the avoidance of doubtstaffing agency, the Pre-Closing Restructuring), Contracts relating to the acquisition temporary employee agency or disposition (whether by merger, sale of equity, sale of assets similar company or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and service provider;
(xx) any Contracts involving the settlement agreement or release of claims with any third party or present or former current employee, officer, director or manager with any former employee within the past five (5) years; and
(xxi) any Contracts not otherwise included in the categories above involving aggregate consideration in excess of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations$20,000 annually.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation The Company has provided complete copies of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any written Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge and an accurate summary of the Companymaterial terms of any oral Material Contract, the other party including any amendments, supplements, schedules, addenda or similar modifications thereto. Except as set forth on Schedule 4.11(b), with respect to each of the Material Contracts is Contracts: (i) the Company has performed, in all material respects, all of the obligations required to be performed by it; (ii) the Company has not in material violated or breached, or declared or committed any default under, any such Contract and, to the Company’s Knowledge, no other Person has violated, breached, or material declared or committed any default under, any such Contract. Except as set forth on Schedule 4.11(b), the Company has not received any written, or to the Company’s Knowledge oral, notice regarding any actual or alleged violation or breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Companyunder, or permit any early terminationintention to terminate, modificationcancel, acceleration materially modify, not renew or cancellation of, or otherwise adversely affect let lapse upon the Company’s or any expiration of its Subsidiaries’ rights or obligations underterm, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Sources: Unit Purchase Agreement (Streamline Health Solutions Inc.)
Contracts and Commitments. (a) Neither Schedule 4.11(a) sets forth with respect to each of the Company nor any of and its Subsidiaries are a party to any: any contract (or group of related contracts) (all such contracts, the “Material Contracts”):
(i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing incurrence of money Indebtedness or to the mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the properties or assets of the Company or any of its Subsidiaries; ;
(xiiii) guaranty with respect to the lending or investing of any obligation for borrowed money funds;
(iii) with respect to Intellectual Property Rights (other than customer agreements or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company agreements pursuant to which the Company or any of its Subsidiaries has material ongoing obligationslicensed off-the-shelf commercial software), including any rights, license, royalty or other similar contract;
(iv) under which it is a lessee of, or holds or operates, any Tangible Personal Property owned by any other Person calling for aggregate payments in excess of $10,000 annually;
(v) each customer contract that the Company reasonably expects to generate annual recurring revenue of $10,000 or more;
(vi) calling for payments in calendar year 2010 in excess of $10,000 annually pursuant to which the Company and its Subsidiaries subcontracts work to third parties;
(vii) calling for aggregate payments by the Company or any of its Subsidiaries in excess of $10,000 (unless terminable by the Company or its Subsidiaries without payment or penalty upon no more than sixty (60) days’ notice);
(viii) imposing any confidentiality or secrecy obligation on the Company or any of its Subsidiaries, excluding standard confidentiality or secrecy provisions contained in agreements with customer, vendors or prospective customers or vendors entered into in the Ordinary Course of Business and consistent with past practice and excluding confidentiality agreements entered into in connection with the Transaction;
(ix) involving a commitment to make any capital expenditure in excess of $10,000 in the aggregate;
(x) constituting an outstanding powers of attorney (or comparable arrangement) executed by or on behalf of the Company or any of its Subsidiaries; or
(xi) containing a covenant restricting the Company or any of its Subsidiaries from competing in any business in any geographical area or using any Company Intellectual Property.
(b) Each of the Material Contract is in full force and effect, and Contracts is a legal, valid and binding obligation of the Company or a Subsidiary of its applicable Subsidiary, is in full force and effect and is enforceable by the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them or such Subsidiary in accordance with its terms. Each of the Material Contracts have been entered into in the Ordinary Course of Business in all material respects, except as set forth in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equitySchedule 4.11(b). Neither the Company nor any Subsidiary of the Company its Subsidiaries is (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice, or both) in breach in any material respect under any contract listed on Schedule 4.11(a), Schedule 4.15(d) or Schedule 4.16, except for such breaches, defaults or claims that, individually or in the aggregate, have not resulted in, and would not reasonably be expected to result in, a Material Adverse Change of the Company. Except as disclosed on Schedule 4.11(a), Schedule 4.15(d) or Schedule 4.16, as applicable, to the Knowledge of the Company, none of the other parties to any Material Contract is (with or without the lapse of time or the giving of notice, or both) in breach in any material respect thereunder nor has any event occurred that with notice or both, lapse of time would constitute a material breach or material default permit termination or acceleration thereof, except for such breaches, defaults or claims that, individually or in the aggregate, have not resulted in, and would not reasonably be expected to result in, a Material Adverse Change of the Company. Except as disclosed on Schedule 4.11(a), Schedule 4.15(d) or Schedule 4.16, as applicable, neither the Company nor any Subsidiary has received any written notice of the intention of any party to terminate any Material Contract and, there is no basis therefor. The Company has delivered or made available to the Buyer a true and complete copy of each Material Contract as in effect on the date of this Agreement.
(c) Except as set forth on Schedule 4.11(c), all of the Material Contracts may be assigned to the Buyer free of cost or expense without obtaining the consent or approval of any other Person or do not require any cost or expense or the consent or approval of any other Person in connection with the transactions contemplated hereby. Neither the Company nor any Subsidiary of the Company is a party to any contract providing for any payments to any Person resulting from the consummation of the transactions contemplated hereby, except as set forth on Schedule 4.11(c). To the Knowledge of the Company, no event has occurred or circumstance exists under or by virtue of any Material Contract that (with or without notice or lapse of time) would cause the creation of any Lien affecting any of the assets of the Company or any Subsidiary of the Company. Neither the Company nor any Subsidiary of the Company has given to or received from any other Person, at any time since January 1, 2010, any written (or permit to the Knowledge of the Company, oral) notice or other communication regarding any early terminationactual, modificationalleged, acceleration possible or cancellation potential violation or breach of, or otherwise adversely affect default under, any Material Contract. There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any amounts paid or payable to the Company or any Subsidiary of the Company under current or completed Material Contracts with any Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation. Except to the extent set forth on Schedule 4.11(c), no customer or other party to any of the Material Contracts has given written (or to the Knowledge of the Company’s , oral) notice to the Company of any plan or intention to terminate, to cancel or otherwise materially and adversely modify its relationship with the Company or any of its Subsidiaries or to decrease materially its usage, purchase or distribution of the services or products of the Company or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Neither Except as set forth in Section 3.18 of the Seller Disclosure Letter, neither the Company nor any of its Subsidiaries are is a party to:
(a) any partnership agreements or joint venture agreements which require a payment, or delivery of assets or services beyond the 2006-2007 ski season and which are not terminable by the Company on 30 days or less notice without penalty to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s Company or any of its Subsidiaries’ , or which contain exclusivity arrangements which will be binding upon Affiliates of the Company (other than a Subsidiary thereof) following the Closing;
(b) any agreement pursuant to which the Company or its Subsidiaries would be required to pay severance to any director, officer, employee or consultant;
(c) any material agreement with another person or entity limiting or restricting the ability of the Company or its Subsidiaries to enter into or engage in any market or line of business;
(d) any material brokerage agreements;
(e) any agreements for the sale of any of the assets of the Company or its Subsidiaries other than in the ordinary course of business activity or limit for the freedom grant to any person or entity of any preferential rights to purchase any of its assets;
(f) any agreement relating to the acquisition by the Company or its Subsidiaries of any operating business or the assets or capital stock of any other corporation, entity or business entered into during the last twelve (12) months;
(g) any material agreements relating to the incurrence, assumption, surety or guarantee of any indebtedness other than ASC-Level Financings;
(h) any material agreements (other than agreements granting rights to use readily available commercial Software and having an acquisition price of less than $50,000 in the aggregate for all such agreements and agreements allowing the use of Company trademarks, tradenames and the like in connection with promotional activities) (i) granting or obtaining any right to use any Intellectual Property or (ii) restricting the rights of the Company or any of its Subsidiaries Subsidiaries, or permitting other Persons, to engage in use or register any line Intellectual Property of business or to compete with the Company;
(i) any Person; (ii) Contract material agreements under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess any entity or individual (which shall not include advances made to an employee of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses the Company in the ordinary course of businessbusiness consistent with past practice); or
(iiij) Contracts relating except for agreements described in Section 3.18(a), any other agreement (or group of related agreements) the performance of which presently requires aggregate payments be made to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than from the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) 100,000 per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result year. Each of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant contracts to which the Company or any of its Subsidiaries grants is a party and which is required to be set forth on Section 3.18 of the Seller Disclosure Letter (the “Material Contracts”), a third party, true and complete copy of each of which has been delivered or a third party grants made available to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating Purchasers prior to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract date hereof is in full force and effect, effect and is a the legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them it in accordance with its terms, in each case, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or laws affecting creditors’ rights or and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). Neither With respect to each Material Contract, neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, andits Subsidiaries nor, to the knowledge Knowledge of the Company, any other party, is in material breach of violation of, or default under, any such Material Contract, and no event has occurred, is pending or, to the other party to each Knowledge of the Material Contracts Company, is not in material default or material breach thereunder. No event has occurred which wouldthreatened, with or without the lapse of time or which, after the giving of notice notice, with lapse of time, or bothotherwise, would constitute a material breach or material default of by the Company or any Subsidiary its Subsidiaries or, to the Knowledge of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No other party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any under such Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Neither The Disclosure Schedule, under the caption referencing this Section 3.13, lists the following contracts, commitments and/or binding understandings to which the Company nor or any of its Subsidiaries are Subsidiary is a party to any: and which are in effect as of the date hereof (the “Contracts”):
(i) Contract containing non-competition all executive officer and other material employment, agency or non-solicitation (excluding such covenants contained in customary non-disclosure consulting agreements) covenants , all contracts or otherwise containing covenants that purport to restrict commitments providing for severance, termination or similar payments, including on a change of control of the Company, and all union, collective bargaining or similar agreements with labor representatives;
(ii) all distributor, reseller, OEM, dealer, manufacturer’s representative, sales agency or advertising agency, finder’s and manufacturing or assembly contracts;
(iii) all material contracts terminable by any other party thereto upon a change of its Subsidiaries’ business activity or limit the freedom control of the Company or any of its Subsidiaries to engage in any line of business Subsidiary or to compete with any Person; (ii) Contract under which any upon the failure of the Company or its Subsidiaries has made advances any Subsidiary to satisfy financial or loans to another Person performance criteria specified in excess such contract as provided therein;
(iv) all leases of one hundred thousand dollars personal property (except as otherwise set forth in Section 3.10 of the Disclosure Schedule) and excluding leases with aggregate annual payments of $100,000100,000 or less for pagers, other than to inter-company loans copy machines, or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses otherwise entered into in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; ;
(v) Contract (other than Franchise Agreements) that grants to all contracts between or among the Company, any Person other than Subsidiary, any holder of Company Capital Stock or any affiliate of such holder, any director, officer or employee of the Company or any Subsidiary or any member of its Subsidiaries (A) most favored pricing provisions his or (B) her immediate family or any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract entity affiliated with any other employee representative of a group of employees such person relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability way to the Company or its Subsidiaries; any Subsidiary (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result the extent not otherwise disclosed in Section 3.21 of the transactions contemplated Disclosure Schedule);
(vi) all material contracts relating to the performance and payment of any surety bond or letter of credit required to be maintained by this Agreement; the Company or any Subsidiary;
(xivii) agreement all contracts obligating the Company, directly or indenture indirectly, to guarantee the payment or performance of any other Person;
(viii) all confidentiality or non-disclosure agreements dated on or after January 1, 2003 and currently in effect;
(ix) all agreements or indentures relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any Subsidiary;
(x) all contracts or group of its Subsidiaries; related contracts with the same party for the purchase of products or services under which the undelivered balance of such products or services is in excess of $500,000;
(xi) all contracts 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 $750,000;
(xii) guaranty of all contracts containing exclusivity, noncompetition or nonsolicitation provisions or which would otherwise prohibit the Company or any obligation for borrowed money or other material guaranty; Subsidiary from freely engaging in business anywhere in the world;
(xiii) lease all license agreements, transfer or agreement under which it is lessee of, joint-use agreements or holds other agreements providing for the payment or operates receipt of royalties or other compensation by the Company or any personal property owned by any other party, for which Subsidiary in connection with the annual rental exceeds one hundred thousand dollars Company Intellectual Property ($100,000as defined in Section 3.14(a) hereof); ;
(xiv) lease or agreement under which it is lessor any and all other agreements of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders Company not entered into in the ordinary course of business or that are material to the business, financial condition, or results of operation of the Company;
(xv) any Contracts with and all other contracts or commitments for capital expenditures in excess of $250,000;
(xvi) all material agreements providing for the development of any supplier required to be listed on Schedule 5.22; products, software or Intellectual Property by or for any third party;
(xvii) material Contract with a Governmental Bodyall agreements for the sale of any capital assets in excess of $250,000; and
(xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has all material ongoing obligationsfranchise agreements.
(b) Each Material Contract is The Company or the applicable Subsidiary has performed in full force and effect, all material respects all obligations required to be performed by it in connection with the Contracts and is a legal, valid and binding obligation not in receipt of the Company or a Subsidiary any claim of the Company which is party thereto, default under any such Contract and, to the knowledge of the Company’s knowledge, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equityno such claim is threatened. Neither the Company nor any Subsidiary has a present expectation or intention of the not fully performing any material obligation pursuant to any Contract. The Company (as applicable) is in material default under has no knowledge of any Material Contract, no party thereto has given to breach or anticipated breach by any other party thereto notice alleging to any Contract. The Company has no knowledge that such a material breach any existing contracts or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, subcontracts with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any Subsidiary’s customers cannot be fully performed by the Company or the applicable Subsidiary on time and without unusual expenditures of its Subsidiaries’ rights time or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contractmoney. Neither the Company, Company nor any Subsidiary has any obligation to refund payments received for work not yet performed under contracts where the percentage of work completed is less than the Companypercentage of revenues received to date.
(c) Prior to the date of this Agreement, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary has provided to perform their respective obligations under such contract as Parent a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies complete copy of each Material written Contract (or listed on Schedule 3.13, and a written description of each such Material Contract that is not writing)any material oral Contract, together with all amendments, modifications waivers or supplements other changes thereto.
Appears in 1 contract
Contracts and Commitments. (a) Neither the Company nor any Schedule 2.8(a) sets forth a complete and accurate list of its Subsidiaries are a party to any: (i) each Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant described below to which the Company or any of its Subsidiaries grants properties is party or is otherwise bound or subject (together with the Government Contracts and Government Bids set forth on Schedule 2.27(a), each, a “Material Contract” and collectively, the “Material Contracts”): (i) any Contract that creates a partnership or a joint venture or arrangement that involves a sharing of profits with any other Person; (ii) any Contract that purports to a third partyor has the effect of limiting either the Company’s right to engage in, or a third party grants to compete with any Person in, any business; (iii) any Contract involving the incurrence by the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars Liabilities ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property Liabilities to render services to customers in the ordinary course of business) in any one transaction or series of related transactions in excess of $25,000; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xxiv) any settlement agreement with Contract creating any third party or present or former employee, officer, director or manager Lien on any of the Company Shares; (v) any Contract pursuant to which the Company has guaranteed any Indebtedness; (vi) any Contract not made in the ordinary course of business that is in excess of $25,000; (vii) any Contract granting any preferential rights to purchase or acquire any interest in any of its Subsidiaries has material ongoing obligations.Company’s assets, property or rights or requiring consent of any party to the transfer and assignment of any such assets, property or rights; (viii) any Contract that contains a “most favored nation” or “most favored customer” clause; and (ix) any leases of properties or assets of the Company, including any Contract creating a Lien on such property or assets. #34018857 v13
(b) Each Material Contract (i) is in full force and effect, and is a legal, valid and binding obligation on the Company and, to the Knowledge of the Company, is valid and binding upon parties other than the Company in accordance with its terms and (ii) contains no provision or covenant prohibiting or limiting the ability of the Company to operate its Business.
(c) No party to any Material Contract (i) has provided any notice to the Company of its intent to terminate, or a Subsidiary withdraw its participation in, any such Material Contract, (ii) has, to the Knowledge of the Company which is party theretoCompany, threatened to terminate, or withdraw from participation in, any such Material Contract or (iii) is, to the Knowledge of the Company, in breach or default in any material respect under any provision thereof, and, to the knowledge Knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to no event or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default condition has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, whether with or without the lapse passage of time or the giving of notice notice, or both, that would constitute such a material breach or material default default.
(d) Except as set forth on Schedule 2.8(d) and Schedule 2.5(b),the execution, delivery and performance of this Agreement and the consummation of the Company transactions contemplated hereby will not (i) result in or give to any Subsidiary Person any right of the Company, or permit any early termination, modificationnon-renewal, cancellation, withdrawal, acceleration or cancellation of, modification in or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor (ii) result in or give to any Subsidiary of the CompanyPerson any additional rights or entitlement to increased, has delivered notice to additional, accelerated guaranteed or contacted any counterparty to other change in payments under any Material Contract requesting an amendment to such contract regarding or (iii) result in the inability creation or imposition of any Actions upon the Company or any Subsidiary to perform their respective obligations Lien upon any of the property or assets of the Company under such contract as a result the terms of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each any Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoContract.
Appears in 1 contract
Sources: Stock Purchase Agreement (Vishay Precision Group, Inc.)
Contracts and Commitments. (a) Neither Schedule 3.17 contains a complete and accurate list of all contracts (written or oral), plans, undertakings, commitments or agreements or other instruments (including, without limitation, intercompany contracts) (“Contracts”) of the following categories to which any Company nor any of its Subsidiaries are is a party to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s by which it or any of its Subsidiaries’ properties or assets is bound as of the date of this Agreement:
(1) Contracts for the purchase of materials, supplies, or equipment (other than purchase contracts and orders for inventory in the ordinary course of business activity consistent with past practice), (2) management, service, commission, consulting, or limit other similar types of Contracts or (3) advertising Contracts, in any such case that have an aggregate future liability to any person (other than the Companies) in excess of $2,500,000 per year and are not terminable by the Companies by notice of not more than 30 days;
(ii) material licenses, options, or other agreements relating in whole or in part to the Intellectual Property (including any license or other agreement under which a Company is licensee or licensor of any such Intellectual Property);
(iii) Contracts (including so-called take-or-pay or keepwell agreements) under which any person (including a Company) has directly or indirectly guaranteed indebtedness, liabilities, or obligations of any person (in each case other than endorsements for the purpose of collection in the ordinary course of business) and, for each such guaranty, (A) whether the obligation covered by that guaranty relates to any Contributor or its affiliate and (B) if the guaranty is secured by a Lien on any property or other asset of the Companies, the nature of that security;
(iv) any Contract that creates a partnership, joint venture, investment or other arrangement (A) involving a sharing of profits or losses relating to all or any portion of the business of any of the Companies, or (B) requiring any of the Companies to invest funds in or make loans to, or purchase any securities of, another person, venture or other business enterprise, in each case, that could reasonably be expected to be in excess of $10,000,000;
(1) Contracts pertaining to the purchase and sale of natural gas in all its forms and all other hydrocarbons (including liquid products) having a term of more than twenty-seven days or involving the payment or receipt of more than $2,500,000 per year of cash or other value, including, without limitation, pipeline leases or operating agreements, including compressor leases; and (2) Contracts pertaining to the processing, treating, compression, gathering, storage, exchange, transportation or transmission of natural gas in all its forms and all other hydrocarbons (including liquid products) involving the payment or receipt of more than $2,500,000 per year of cash or other value;
(vi) Contracts, leases, or easements involving yearly rental payments or receipts in excess of $2,500,000;
(vii) all promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for the lending of money, whether as borrower, lender or guarantor, in excess of $10,000,000 and all related security agreements or similar agreements associated therewith;
(viii) Contracts containing covenants limiting the freedom of the a Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which person or operate at any of the Company or its Subsidiaries has made advances or loans location, including, without limitation, any preferential rights granted to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; third parties;
(ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license acquisition or disposition, directly or indirectly (by merger or otherwise), of commercially available, off-the-shelf software assets with a value in excess of $10,000,000 (other than inventory) or (B) Contracts for the non-exclusive license capital stock of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement any person (including, for the avoidance of doubtwithout limitation, the Pre-Closing RestructuringCompanies);
(x) Contracts between a Company, Contracts relating to on one hand, and any of the acquisition Contributors or disposition any affiliate of the Contributors (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present current or former employee, officer, director or manager employee of the Company pursuant to which the Company Contributors or any affiliate of its Subsidiaries has the Contributors) on the other hand;
(xi) Contracts pertaining to the ownership, operation, or maintenance of any and all facilities of the Companies having a value in excess of $10,000,000;
(xii) to the extent not otherwise listed on Schedule 3.17, Contracts the primary purpose of which are to require a Company to indemnify or otherwise make whole any person with an indemnification or make whole obligation having a value in excess of $10,000,000;
(xiii) Contracts that prohibit a Company from making cash distributions in respect of the equity interests of such Company, other than restrictions set forth in the limited liability company agreement or other governing documents of a Company; and
(xiv) any other Contract which is material ongoing obligationsto the Companies.
(b) Each True copies of the written Contracts, and accurate written summaries of the oral Contracts, identified in Schedule 3.17 (the “Material Contract Contracts”) have been made available to KMEP. Except as set forth in Schedule 3.17, the Companies are not and, to KMI’s and the Contributors’ knowledge, no other party is in default under, or in breach or violation of (and no event has occurred which, with notice or the lapse of time or both, would constitute a default under, or a breach or violation or lapse of) any term, condition or provision of any of the Material Contracts except for defaults, breaches, violations or events which would not, individually or in the aggregate, have, or reasonably be expected to have, a Material Adverse Effect on the Companies, taken as a whole.
(c) Other than Contracts which have terminated or expired in accordance with their terms, each of the Material Contracts constitutes valid, binding and enforceable obligations of the Companies or the Contributors and the Contributors’ affiliates to the extent they are parties thereto and, to KMI’s and the Contributors’ knowledge, enforceable obligations of any other party thereto, in accordance with its terms (subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered on a proceeding in equity or at law) and an implied covenant of good faith and fair dealing) and is in full force and effect, and is a legalno defenses, valid and binding obligation of the Company off-sets or a Subsidiary of the Company which is party thereto, andcounterclaims have been asserted or, to the knowledge of KMI and the CompanyContributors, of threatened by any party thereto other than the other parties thereto enforceable against each of them in accordance with its termsCompanies, in each casenor has a Company executed any waiver that materially waives any rights thereunder, subject to bankruptcy, insolvency, reorganization, moratorium except as Schedule 3.17 sets forth.
(d) To KMI’s and similar Laws relating to or affecting creditorsthe Contributors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contractknowledge, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which either entitles, or would, with upon notice or without the lapse of time or the giving of notice or both, constitute entitle the holder of any indebtedness set forth in Schedule 3.17 to accelerate, or which does accelerate, the maturity of any indebtedness affecting the Companies.
(e) Except as set forth in Schedule 3.17 or as would not, individually or in the aggregate, have, or reasonably be expected to have, a material breach or material default Material Adverse Effect on the Companies, taken as a whole, (i) none of the Company Contributors, the Contributors' affiliates or the Companies have received any Subsidiary of the Companyprepayment, advance payment, deposits or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect theretosimilar payments, and have no party has given written notice of any material dispute refund obligation, with respect to any Material Contract. Neither the Companygas or products purchased, nor any Subsidiary sold, transported, gathered, stored or processed by or on behalf of the CompanyCompanies; (ii) none of the Contributors, has delivered notice to the Contributors’ affiliates or contacted the Companies have received any counterparty compensation for transportation, gathering, storage or processing services which would be subject to any Material Contract requesting an amendment refund or create any repayment obligation either by or to such contract regarding the inability Companies, and to KMI's and the Contributors' knowledge, there is no basis for a claim that a refund is due; and (iii) with regard to gas transportation, gathering, processing, storage and sales Contracts in effect as of the Company or any Subsidiary date hereof, the Companies will be entitled to perform their respective obligations under such receive the full contract as a result of COVID-19 or other force majeure events. The Company has made available to price in accordance with the Purchaser true and correct copies of each Material Contract (or a written description terms of each such Material Contract that is not writing)for all gas and products transported, together with all amendmentsgathered, modifications or supplements theretoprocessed, stored and/or sold on and after the Closing Date.
Appears in 1 contract
Sources: Contribution Agreement (Kinder Morgan Energy Partners L P)
Contracts and Commitments. (ai) Neither Section 4.1(n)(i) of the Company nor Disclosure Schedule sets forth an accurate and complete list of each of the following oral or written Contracts to which Seller is a party or by which its assets are bound (collectively, “Material Contracts”):
(A) any Real Property Lease;
(B) any Contract (or group of related Contracts) for the lease or license of personal property (including Intellectual Property) to or from any Person;
(C) agreements or series of related agreements with customers or distributors involving aggregate payments to Seller in excess of $50,000 in any twelve (12)-month period;
(D) any Contract (or group of related Contracts) for the purchase or sale of raw materials, commodities, supplies, products or other personal property (including Intellectual Property) or for the furnishing or receipt of services involving aggregate payments by Seller in excess of $50,000 in any twelve (12)-month period;
(E) any Contract concerning a partnership or joint venture;
(F) any Contract (or group of related Contracts) under which Seller has created, incurred, assumed or guaranteed any Indebtedness, or under which Seller has imposed or become subject to any Encumbrance on any of its Subsidiaries are a party to any: assets, tangible or intangible;
(iG) any Contract containing concerning non-disclosure, confidentiality, non-competition or non-solicitation solicitation;
(excluding such covenants contained in customary non-disclosure agreementsH) covenants or otherwise containing covenants that purport to restrict the Company’s or any Contract between Seller and any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; Seller’s other Affiliates;
(ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (BI) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement equity option, equity purchase, equity appreciation, deferred compensation, severance, change of control or other form material plan or arrangement for the benefit of deferred compensation planthe current or former officers, other than as set forth in Section 5.14(adirectors, managers, employees or independent contractors of Seller;
(J) or the Disclosure Schedules relating thereto; any collective bargaining agreement;
(viiiK) stock purchase, stock option or similar plan; (ix) any Contract for the employment of any individual on a full-time time, part-time, consulting, or consulting other basis or that provides for severance benefits;
(AL) providing for base compensation any Contract under which Seller has advanced or loaned any amount to Seller’s officers, directors, managers or employees;
(M) any Contract under which Seller has made any advance or loan to any other Person;
(N) any settlement, conciliation, or similar Contract;
(O) any agreement that (i) limits the freedom of Seller to compete in excess any line of one hundred thousand dollars business or with any Person or in any area ($100,000including any agreement that contains any non-competition or non-solicitation provision) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to or that would so limit the Company freedom of Purchaser or its Subsidiaries; Affiliates after the Closing, (xii) Contract providing for payments to any employee, officer, director, consultant contains exclusivity obligations or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement restrictions binding on Seller or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) that would be binding on any portion of the assets of the Company Purchaser or any of its SubsidiariesAffiliates after the Closing or (iii) contains most favored nations provisions binding on the Business; and
(xiiP) guaranty Contract, not otherwise identified above, pursuant to which Seller is obligated as of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party Closing Date to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future make payments in excess of three hundred $25,000 during the 12-month period following the Closing Date.
(ii) Seller has delivered to Purchaser a true, complete and fifty thousand dollars ($350,000) in correct copy of each Material Contract and a written summary setting forth the aggregate; (xvi) other than purchase orders entered into in the ordinary course material terms and conditions of business, any Contracts with any supplier required each oral Material Contract. With respect to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than such Contract: (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material such Contract is legal, valid, binding, enforceable and in full force and effect; (B) Seller is not, and is a legalto Seller’s Knowledge, valid and binding obligation of the Company or a Subsidiary of the Company which is no other party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurreddefault, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No and no event has occurred which would, that with notice or without the lapse of time or the giving of notice or both, both would constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, modification or acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, under such Contract; and (C) no party has given written notice repudiated any provision of any material dispute with respect such Contract or threatened to any Material terminate such Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Contracts and Commitments. (a) Neither Except as set forth on Schedule 3.09 or with respect to any Company Employee Benefit Plan set forth on Schedule 3.13(a), no Group Company as of the Company nor any of its Subsidiaries are a date hereof is party to any: (i) Contract containing non-competition relating to any Financial Indebtedness (including any commitment with respect to Financial Indebtedness) or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants any Contract granting, creating or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on assets of any portion of the assets of the Company or Group Companies to secure any of its SubsidiariesFinancial Indebtedness; (xiiii) joint venture, strategic alliance, reseller agreement or partnership agreements; 30 [[6907028]] (iii) guaranty of any obligation for borrowed money Financial Indebtedness or other material guarantyguaranty (other than any guaranty of any obligation or liability solely of any Group Company); (xiiiiv) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars $750,000 ($100,000excluding the Real Property Leases); (xivv) lease Contract or agreement under which it is lessor group of related Contracts with the same party or permits any third-party to hold its affiliated entities for the purchase or operate any propertydisposition of products or services, real business or personalother material assets (whether by merger, sale of equity interests, sale of assets or otherwise) that provide for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments by a Group Company in excess of three hundred and fifty thousand dollars ($350,000) 750,000 in the aggregate; (xvivi) Contract or group of related Contracts with a customer (including any carrier or broker) or its affiliated entities that provides annual net revenues (based on any 12-month period) to the Group Companies in excess of $1,000,000; (vii) Contract under which a Group Company (A) is granted a license to use any material third party Intellectual Property (other than purchase orders entered into Incidental Licenses) or (B) grants to any Person a license to use any material Owned Intellectual Property (other than non-exclusive licenses granted in the ordinary course Ordinary Course of business, any Contracts with any supplier required to be listed on Schedule 5.22Business); (xviiviii) material Contract with a Governmental Body; (xviii) Contracts pursuant relating to which the ownership by the Company or any of its Subsidiaries grants to a third partyof any joint venture interest or other equity ownership interest in any other corporation, organization or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars entity; ($50,000ix) per annum, other than Contract that (A) Contracts for contains a put, call or similar right pursuant to which the license Group Companies would be required to purchase or sell, as applicable, any equity interests or assets of commercially available, off-the-shelf software any Person or (B) Contracts for grants any rights of first refusal, rights of first offer, option to purchase, acquire, sell or dispose or other similar rights to any Person with respect to any material asset of the non-exclusive license of Intellectual Group Companies; (x) Real Property Leases; (xi) Contract required to be disclosed on Schedule 3.18; (xii) Contract that materially prohibits any Group Company from competing in the ordinary course business of businessthe Group Companies as conducted in the Ordinary Course of Business; (xixxiii) except in connection collective bargaining agreement, labor contract or other written agreement or arrangement with the transactions contemplated by this Agreement any labor union or any employee organization or contract, agreement or arrangement with a professional employer organization; (including, for the avoidance xiv) Contract or series of doubt, the Pre-Closing Restructuring), related Contracts relating to the acquisition or disposition of any business, capital stock or assets (whether by merger, sale consolidation, acquisition of equity, sale of stock or assets or otherwise) of any other Person or line providing for indemnification obligations of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation or “earn-out” or other contingent obligations or deferred or withheld payment obligations to the extent such indemnification 31 [[6907028]] obligations or “earn-out” or other contingent obligations or deferred or withheld payment obligations are outstanding as of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company date hereof; (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Sources: Unit Purchase Agreement (White Mountains Insurance Group LTD)
Contracts and Commitments. Set forth in Schedule 3.12 of the Company Disclosure Schedule hereto is an accurate and complete description of all the following contracts, agreements and other arrangements, and any amendments, supplements or modifications thereto, to which the Company is a party or by which it is bound, and which have not been fully performed:
(a) Neither the Company nor any All contracts, agreements or commitments in respect of its Subsidiaries are a party to any: (i) Contract containing non-competition the sale of products or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants services, or otherwise containing covenants that purport to restrict for the Company’s purchase of raw materials, equipment, supplies, other products or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; utilities and (ii) Contract under which services of any of the Company subcontractor or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000any other independent contractor, other than to inter-company loans or advances to any employee or director in connection with travelcontracts, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) commitments that grants to any Person other than involve payments or receipts by the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other less than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred ten thousand dollars ($100,00010,000.00) per annum, in any single case and (B) which is not are terminable with less than 30 days’ notice and without any liability to by the Company or are to be performed fully within three (3) months from the date hereof;
(b) All outstanding contracts with officers, employees, agents, consultants, advisors, salespersons, sales representatives, distributors or dealers, and all collective bargaining agreements;
(c) All stock option, profit-sharing, pension, retirement, thrift, 401(k), bonus, deferred compensation, severance pay, welfare, medical, dental, disability, life or other employee benefit plans, agreements, arrangements or commitments, whether or not legally binding;
(d) Any agreement whereby the Company is restricted from carrying on its Subsidiaries; business in any respect or in any location;
(xe) Contract providing Any debt obligation for payments the deferred purchase price of goods or services or for borrowed money, including as guarantor, surety, endorser, co-maker or indemnitor, or agreements to acquire any employeesuch debt obligation of others;
(f) Any mortgage, officerdeed of trust, director, consultant security agreement or individual service provider as a result other instrument creating any lien against any properties or assets utilized in the business of the transactions contemplated by this Agreement; Company;
(xig) agreement Any contract or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into arrangement not in the ordinary course of business, including, without limitation, any Contracts with preferential rights to purchase any supplier required to be listed of the assets utilized in the business of the Company, any limitations on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the freedom of the Company to engage in business of any kind in any geographical area, or any continuing arrangements for future purchase of its Subsidiaries grants to materials, supplies or equipment;
(h) Any agreements, contracts or commitments for the provision of goods or services (including all proposals, bids and matters included in the Company's backlog, whether or not cancelable) of a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration value in excess of fifty twenty thousand dollars ($50,00020,000.00) per annumin any single case;
(i) Any agreements, contracts or commitments with any agents, consultants or independent or general contractors, or any power of attorney or similar authorization outstanding;
(j) Any contract or arrangement with a Shareholder or members of his family, or entities controlled by him (each of which contracts and arrangements is hereby represented to have been negotiated at arm's length and on terms that are fair to the Company); and
(k) All contracts, agreements or commitments other than those of the types covered by paragraphs (Aa) Contracts for through (j) inclusive that either (i) involve payments or receipts by the license Company of commercially availablemore than ten thousand dollars ($10,000.00) in any single case, off-the-shelf software are not terminable by the Company, and are not to be fully performed within three (3) months from the date hereof or (Bii) Contracts for otherwise materially affect the non-exclusive license of Intellectual Property in the ordinary course of business; condition (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition financial or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Dateother) or prospects of the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager Company. To the best knowledge of the Company pursuant to which and the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is Majority Shareholders all the contracts, agreements and other arrangements, as amended, described in Schedule 3.13 are valid, binding and enforceable and in full force and effect, and is a legal, valid and binding obligation there are no (i) notices of the Company violation or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to (ii) existing defaults (or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which wouldevents that, with notice or without the lapse of time or the giving of notice or both, would constitute a material breach or material default defaults) on the part of the Company or, to the best knowledge of the Company and the Majority Shareholders, on the part of any other party thereto, which default would have a material adverse affect on the Company's operations, properties, assets or financial condition, and the Company and the Majority Shareholders have not received notice of any Subsidiary such default, nor does the Company or the Majority Shareholders know of any facts or circumstances that would reasonably indicate the Company will be or may be in default under any such contract, agreement or other arrangement. Copies of all the contracts, agreements and other arrangements described in Schedule 3.13 have been heretofore delivered by the Company to Acquisition and such copies are true and complete and include all amendments, supplements and modifications thereto. Except as set forth in Schedule 3.13, the Company is not a party to any contract for the provisions of goods or services under which the cost to complete (estimated in good faith) exceeds the amount remaining to be billed by more than ten thousand dollars ($10,000.00). All of the Company's prior contracts, projects and installations have been performed in a professional and workmanlike manner in accordance with prevailing standards of skill and care and in full compliance with all prevailing laws, rules, ordinances, governmental regulations or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or orders of any material right or obligation thereunder. No party governmental authority and/or jurisdiction applicable to any Material Contract has exercised any termination rights with respect theretosuch contracts, projects and installations, and there has been no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 negligence or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each basis for claim based on such Material Contract that is not writing), together with all amendments, modifications or supplements theretoperformance.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Exigent International Inc)
Contracts and Commitments. (a) Neither the Company nor any of its Subsidiaries are Schedule 3.13(a) sets forth a party to any: list (iincluding for each oral agreement or contract, a summary thereof) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom as of the Company date of this Agreement of each of the following agreements or any of its Subsidiaries contracts, whether written or oral, to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Target Companies is a party or by which any Target Company is bound or its Subsidiaries has made advances to which any asset of any Target Company is subject:
(i) any employment agreement or loans to another Person in excess employment contract with any officer, independent contractor, or employee of one hundred thousand dollars $100,000any of the Target Companies, other than to interoffer letters for at-company loans or advances to will employment;
(ii) any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; collective bargaining agreement;
(iii) Contracts relating any contract or agreement with any officer, employee, consultant or independent contractor with respect to Indebtedness; change of control or severance;
(iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; any covenant not to compete granted by any Target Company in favor of a third party;
(v) Contract (other than Franchise Agreements) that grants to any Person other than the Company lease or any of its Subsidiaries similar agreement under which (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it Target Companies is lessee of, or holds or operates uses, any machinery, equipment, vehicle or other tangible personal property owned by a third party or (B) any other of the Target Companies is a lessor or sublessor of, or makes available for use by any third party, any tangible personal property owned or leased by the Target Companies, in each case which provides for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments by the Target Companies in excess of three hundred $100,000 per annum and fifty thousand dollars is not terminable by the Target Companies upon notice of sixty (60) days or less for a cost of less than $350,000100,000;
(vi) any agreement or contract under which the Target Companies have borrowed any money or issued any note, indenture or other evidence of Indebtedness or guaranteed Indebtedness of others (other than intercompany Indebtedness, endorsements for the purpose of collection, loans made to employees for relocation, travel or other employment related purposes or purchases of equipment or materials made under conditional sales contracts, in each case in the aggregate; Ordinary Course of Business);
(xvivii) other than purchase orders all contracts that include or constitute a power of attorney (excluding power of attorney in connection with customs forms entered into in the ordinary course Ordinary Course of businessBusiness);
(viii) all contracts (or group of related contracts) under which the any Target Company contracts for any material agency, representation, distribution or brokerage services for the sale of the Target Companies’ products involving payments of more than $100,000 annually and is not terminable by the Target Companies upon notice of sixty (60) days or less for a cost of less than $100,000;
(ix) all contracts (or group of related contracts) under which any Contracts Target Company contracts for transportation or freight services involving payments of more than $100,000 annually and is not terminable by the Target Companies upon notice of sixty (60) days or less for a cost of less than $100,000;
(x) all contracts (or group of related contracts) for capital expenditures in excess of $100,000 individually and is not terminable by the Target Companies upon notice of sixty (60) days or less for a cost of less than $100,000;
(xi) all contracts (or group of related contracts) that deal with the provision of goods or services by or on behalf of any Target Company on a co-manufacturing basis involving payments of more than $100,000 annually and is not terminable by the Target Companies upon notice of sixty (60) days or less for a cost of less than $100,000;
(xii) all contracts with any supplier required former director, officer, employee, consultant or member of any Target Company involving payments of more than $100,000 annually and is not terminable by the Target Companies upon notice of sixty (60) days or less for a cost of less than $100,000;
(xiii) any Order, settlement or similar agreement related to be listed on Schedule 5.22or affecting the business of any Target Company, and either involving payments of more than $100,000 or materially restricting the operation of any Target Company’s business;
(xiv) all contracts (or group of related contracts) concerning a franchising, partnership or joint venture; or
(xviixv) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company any agreement, contract, lease or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Propertylicense, in each case involving consideration not included in clauses (i)-(xiv) foregoing or set forth on Schedule 3.13(a) or Schedule 3.12(b), to which the Target Companies is a party or by or to which any of their respective assets are bound or subject, which provides for future payments by the Target Companies in excess of fifty thousand dollars $100,000 per annum and is not terminable by the Target Companies upon notice of sixty (60) days or less for a cost of less than $50,000) per annum, 100,000 (other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property warranty obligations in the ordinary course Ordinary Course of business; (xix) except in connection with the transactions contemplated by this Agreement (includingBusiness, for the avoidance of doubt, the Pre-Closing Restructuringpurchase orders and Leases), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effectThe Target Companies have delivered to, and is or made available for inspection by, Buyer a legalcopy of each contract, valid and binding obligation of the Company lease, license, instrument or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company agreement listed on Schedule 3.13(a) (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Companycollectively, the other party to “Material Contracts”). Except as disclosed on Schedule 3.13(b), each of the Target Companies has performed, in all material respects, all obligations required to be performed by it as of the date hereof under the Material Contracts to which it is a party and is not in material default or material breach thereunder. No event has occurred which would, (with or without the lapse of time or the giving of notice notice, or both, constitute a material ) in breach or default thereunder in any material default of respect, nor has the Company or received any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect intention to terminate any Material Contract. Neither the Company, nor any Subsidiary Each of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability Contracts is a valid and legally binding obligation of one of the Company Target Companies, as applicable, enforceable in accordance with its terms and conditions (except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 similar Laws affecting creditors’ rights generally or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writingby general equitable principles), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Sources: Stock and Membership Interest Purchase Agreement (Snyder's-Lance, Inc.)
Contracts and Commitments. (a) Neither As of the Company nor date of execution of this Agreement, Schedule 4.22(a) of the Signing Disclosure Schedule, and as of the Closing Date, Schedule 4.22(a) of the Closing Disclosure Schedule, contains a complete and accurate list of all agreements, contracts, licenses, instruments, obligations and commitments of any kind, whether written or oral, including all indentures, loans, mortgages leases, notes, installment obligations (including finance leases), consulting agreements, services agreements and agreements for the sale of goods or provision of services, any agreement to acquire any debt obligations of others, power of attorney or any obligations or liabilities (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the obligation of any other Person, corporation, partnership, joint venture, association, organization or other entity (collectively, the "Contracts") for which any of its Subsidiaries are a party to anythe following apply: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to is a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to by which the Company or any of its Subsidiaries has material ongoing obligationsor any of their properties or assets may be bound or (ii) entered into by or on behalf, at the direction, with the consent or under the authority of (A) any past or present Additional KSO Employee, (B) the Company, any of its Subsidiaries or any of the Selling Shareholders, (C) any past or present officer, director, commissioner or employee of the Company, any of its Subsidiaries or any of the Selling Shareholders or (D) any past or present officer, director, commissioner or employee of any Affiliate of any Selling Shareholder to which the KSO Unit is a party or by which the KSO Unit or any of its properties or assets may be bound.
(b) Each Material Contract is in full force and effectExcept for the KSO Agreement, and each of the Contracts is a legal, valid valid, binding and binding enforceable obligation of the Company or a Subsidiary of the Company which is party parties thereto, and, to except as the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganizationreorganization or other similar laws affecting the enforcement of Purchaser's rights generally and (ii) general equitable principles. Except for the KSO Agreement, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither neither the Company nor any Subsidiary of the Company (as applicable) its Subsidiaries is in material default under or in violation of, nor has any Material Contract, no party thereto has given to any other party thereto notice alleging event occurred that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, lapse of time or both would constitute a material breach default or material event of default under, nor is there any valid basis for any claim of default under or violation of, any Contract. To the Knowledge of the Company Selling Shareholders, the KSO Unit is not in default under or in violation of any Subsidiary Contract and no event has occurred that with the giving of notice or lapse of time or both would constitute a default or event of default under, and there is no basis for any claim of default under or violation of, any Contract. To the Knowledge of the CompanySelling Shareholders, there has been no default, violation or permit any early termination, modification, acceleration event that with the giving of notice or cancellation of, lapse of time or otherwise adversely affect both would constitute a default or event of default on the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or part of any material right or obligation thereunder. No other party to any Material a Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contractexcept for the KSO Agreement. Neither the Company, nor any Subsidiary As of the CompanyClosing Date, has delivered notice to or contacted any counterparty to any Material each Contract requesting an amendment to such contract regarding then in effect was entered into in the inability ordinary course of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together business consistent with all amendments, modifications or supplements theretopast practice.
Appears in 1 contract
Contracts and Commitments. (a) Neither Schedule 6.12(a) contains a true, correct and complete listing of the following Contracts, whether written or oral, to which the Company nor or any of its Subsidiaries are a Subsidiary is party to any: or by which the Company or any Subsidiary is bound (collectively, the “Material Contracts”):
(i) each consulting or sales Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport under which any Person provides services to restrict the Company’s Company or any Subsidiary that requires the Company or any Subsidiary to expend in excess of its Subsidiaries’ $75,000 over the remaining period of such Contract;
(ii) each Contract under which the Company or any Subsidiary is obligated to provide consulting services, development services, professional services or support services to another Person that will generate, or is reasonably likely to generate, more than $100,000 in revenue over the remaining period of such Contract;
(iii) each fidelity or surety bond or completion bond;
(iv) each Contract of indemnification or Guaranty except (A) confidentiality or nondisclosure agreements entered into on commercially reasonable terms, (B) licenses pursuant to shrink wrap licenses, click wrap licenses or other generally commercially available license agreements and (C) under Standard Company Agreements;
(v) each Contract relating to capital expenditures in an amount in excess of $75,000 in the aggregate over the remaining term of such Contract;
(vi) each Contract pursuant to which payments were made during the twelve-month period ended on the Latest Balance Sheet Date by or to the Company or any Subsidiary in excess of $75,000;
(vii) each Contract relating to the disposition or acquisition (by merger, purchase of stock or assets or otherwise) of any interest in any business activity enterprise (other than the transactions contemplated by this Agreement);
(viii) each Contract involving a joint venture or limit partnership by the freedom Company or any Subsidiary with any other Person;
(ix) each Contract relating to any Indebtedness of the Company or any Subsidiary or creating a Lien, other than a Permitted Lien and intercompany indebtedness and balances, upon any of its Subsidiaries the properties or assets owned or leased by the Company or any Subsidiary that will survive Closing;
(x) each lease for real or personal property in each case involving payments in excess of $50,000 per annum;
(xi) each Contract expressly granting any right, title or interest in, to engage or under any Intellectual Property, except (A) confidentiality or nondisclosure agreements entered into on commercially reasonable terms, (B) licenses to the Company or any Subsidiary to non-custom IT Software pursuant to shrink wrap and click wrap licenses or other generally commercially available license agreements or (C) Standard Company Agreements;
(xii) each Contract relating to the development, marketing or distribution of products or services involving payments by or to the Company or any Subsidiary in excess of $75,000 since January 1, 2009, but excluding any Contract within any of the other categories in this Section 6.12(a);
(xiii) each Contract, in each case (other than pursuant to confidentiality or nondisclosure agreements that do not directly by their express terms address the items in (A) and (B) below), (A) containing any covenant limiting the right of the Company or any Subsidiary to (1) develop, market or distribute products or services, (2) engage, participate or compete in any line of business business, market or geographic area, (3) solicit the employment of, or hire, any Person (other than pursuant to confidentiality or nondisclosure agreements entered into on commercially reasonable terms) or (4) compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) granting any exclusive manufacturing, sales, marketing or distribution rights or other exclusive rights, rights of first refusal, offer or rights of first negotiation refusal, “most favored nation” rights or other similar rights; rights to any Person;
(vixiv) each Contract currently in effect relating to advances or loans by the Company or any Subsidiary to any other Person in excess of $15,000;
(xv) each Contract wherein or whereby the Company or any Subsidiary has agreed to, or assumed any obligation or duty to, warrant or indemnify, or otherwise assume or incur any Liability, with respect to the infringement, misappropriation or other violation of any Intellectual Property by the Company, any Subsidiary or any other Person, in each case, other than pursuant to (A) shrink wrap, click wrap or generally commercially available license agreements for non-custom IT Software, (B) Standard Company Agreements or (C) confidentiality or nondisclosure agreements entered into on commercially reasonable terms;
(xvi) each settlement, conciliation or similar Contract which includes any payment by the Company or any Subsidiary at or after the Closing in an amount in excess of $100,000 in the aggregate or limits, in any manner, the operation of the Company, any Subsidiary or the Business;
(xvii) each Contract granting a power of attorney to any Person other than in connection with patent and trademark applications;
(xviii) each collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; labor union;
(viixix) each bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a;
(xx) or the Disclosure Schedules relating thereto; (viii) each stock purchase, stock option or similar plan; ;
(ixxxi) each Contract for the employment of any individual officer or employee on a full-time or consulting basis (A) providing for base compensation with annual payments in excess of one hundred thousand dollars ($100,000;
(xxii) per annum, and each Contract with any Affiliate (B) which is not terminable with less other than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer), director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets Securityholder of the Company or any of its Subsidiaries; (xii) guaranty the Subsidiaries or Affiliates of any obligation of the Securityholders;
(xxiii) each Contract providing for borrowed money severance, retention, change-in-control or other material guaranty; similar payments that, in each case, will survive Closing;
(xiiixxiv) lease each Contract (other than those involving Company Transaction Expenses) that involves payments to or agreement under which it is lessee of, by the Company or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments Subsidiary in excess of three hundred $100,000 over the period of such Contract that is outside the Ordinary Course of Business; and
(xxv) each Contract in respect of which the consequences of a default or termination by the Company would result in liquidated damages payable by the Company or any Subsidiary in an amount in excess of $100,000 (for the avoidance of doubt, monetary caps or other limitations on damages shall not be construed as “liquidated damages” for purposes of this clause).
(b) A true, correct and fifty thousand dollars ($350,000) in complete copy of the aggregate; (xvi) other than purchase orders entered into in current versions of the ordinary course of business, any Contracts with any supplier required to be listed Standard Ts&Cs is set forth on Schedule 5.22; 6.12(b). Except as specifically identified in Schedule 6.12(b), all prior versions of the Standard Ts&Cs used by the Company since January 1, 2009, are consistent in all material respects with the current versions of the Standard Ts&Cs.
(xviic) Except as set forth on Schedule 6.12(c), neither the Company nor any Subsidiary has outstanding any bid or tender or sale or service proposal that, if accepted, would be likely to constitute a Material Contract.
(d) To the extent that a Material Contract is in writing, a true, correct and complete copy thereof (including any amendments or waivers with respect thereto) has been made available or provided to Purchaser. To the extent that a Material Contract is not in writing, the Company has provided to Purchaser a written description of the material terms and conditions thereof. Except as set forth on Schedule 6.12(d), each Material Contract with a Governmental Body; (xviii) Contracts pursuant that has not expired or terminated to which the Company or any of its Subsidiaries grants to a third party, Subsidiary is party or a third party grants to by which the Company or any Subsidiary is bound is in full force and effect and is valid and enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, moratorium or other similar Laws relating to creditors’ rights and general principles of equity, and there is no material default or event of default (or event which with notice or lapse of time, or both, would constitute such a material default or event of default) thereunder by the Company or any Subsidiary or, to the Knowledge of the Company, by any other party to such Contract. Following the Effective Time, and subject to obtaining any required consents under any Material Contract, the Surviving Corporation will be permitted to exercise in accordance with the terms and conditions of each such Material Contract all of the material rights of the Company and its Subsidiaries, a license Subsidiaries under each Material Contract to which the Company or any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for Subsidiary is party or by which the license of commercially available, off-the-shelf software Company or (B) Contracts for any Subsidiary is bound to the non-exclusive license of Intellectual Property in same extent the ordinary course of business; (xix) except in connection with Company and its Subsidiaries would have been able to had the transactions contemplated by this Agreement (includingnot occurred, for without penalty or the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) acceleration of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationsrights.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Neither Except as set forth on the Contracts Schedule, neither the Company nor any of its Subsidiaries are is a party to any: :
(i) Contract containing non-competition collective bargaining or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; similar agreement;
(ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules Employee Benefits Schedule relating thereto; ;
(viiiiii) contract or other arrangement with respect to the purchase or sale of any Equity Interest or providing for the acquisition of any business or significant assets of any other Person (whether by way of merger, combination, stock purchase, stock option asset purchase or other similar plan; transaction) under which there are any remaining obligations on the part of any party thereto;
(ixiv) Contract contract for the employment of any officer, individual employee or other person on a full-time or consulting basis (A) providing for base compensation in excess of one hundred and seventy-five thousand dollars ($100,000175,000) per annum, and ;
(B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xiv) agreement or indenture relating to the borrowing of money Indebtedness or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; ;
(xiivi) guaranty agreement that prohibits the payment of dividends or distributions in respect of any obligation for borrowed money Equity Interest of the Company or any of its Subsidiaries, prohibits the pledging of any Equity Interest of the Company or any of its Subsidiaries or prohibits the issuance of guarantees by the Company or any of its Subsidiaries;
(vii) contract or agreement that includes a performance or other guarantee obligation (other than any product warranty issued in the ordinary course of business) (x) with respect to the purported benefits of the product or service that is the subject thereof to the customer and (y) that, if not satisfied, would result in a material guaranty; price adjustment under the terms of such contract;
(xiiiviii) lease or agreement under which it is (A) lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars party or ($100,000); (xivB) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, in each case for which the annual rental exceeds one hundred seventy-five thousand dollars ($100,00075,000); ;
(xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xviix) other than purchase orders entered into in the ordinary course of business, any Contracts contract or group of related contracts with any supplier required to be listed on Schedule 5.22; the Customers and Suppliers Schedule;
(xviix) material Contract other than purchase orders entered into in the ordinary course of business, contract or group of related contracts with a Governmental Body; any customer required to be listed on the Customers and Suppliers Schedule;
(xviiixi) Contracts pursuant other than contracts with customers and suppliers entered into in the ordinary course of business, contract or group of related contracts involving payments (to or from the Company and/or any of its Subsidiaries) of more than three hundred thousand dollars ($300,000) in any twelve (12)-month period;
(xii) contract which prohibits or restricts the Company or any of its Subsidiaries grants to a third party(or, following the Closing, would prohibit or a third party grants to restrict the Purchaser, the Surviving Entity or any of their respective Affiliates) from freely engaging in business anywhere in the world, including any contract that (A) materially restricts the Company or any of its SubsidiariesSubsidiary from engaging in any material line of business, developing, marketing or distributing products or services or obligates the Company or any of its Subsidiary not to compete with another Person or in any geographic area or during any period of time or that would otherwise limit the freedom of Purchaser or its Affiliates (including the Surviving Entity) from engaging in any line of business after the Effective Time, (B) contains exclusivity obligations or restrictions binding on the Company or any of its Subsidiaries or that would be binding on the Purchaser or any of its Affiliates (including the Surviving Entity) after the Effective Time or (C) prohibits the Company or any of its Subsidiaries from hiring or soliciting for hire any employee or group of employees (other than, in the case of this clause (C), contracts entered into in the ordinary course of business);
(xiii) contract containing most favored nation pricing provisions or granting to any Person a right of first refusal, a license right of first offer or an option to purchase, acquire, sell or dispose of any Intellectual Propertytheir respective assets (other than inventory in the ordinary course of business) valued at an amount in excess of fifty thousand dollars ($50,000);
(xiv) agreement that contains any material on-going indemnification rights or obligations, or credit support relating to such indemnification rights or obligations, other than any of such indemnification rights or obligations incurred in each case involving consideration the ordinary course of business;
(xv) settlement agreement for an amount in excess of fifty thousand dollars ($50,000) per annumentered into within the past three (3) years;
(xvi) agreement with any Governmental Body, including any agreement that is (A) a settlement or similar agreement with any Governmental Body, or (B) an Order or consent of a Governmental Body to which the Company or any of its Subsidiaries is subject, involving material performance by the Company or any of its Subsidiaries after the date of this Agreement;
(xvii) Intellectual Property Agreements, except as set forth on the Intellectual Property Schedule;
(xviii) other agreement affecting the Company’s or any of its Subsidiaries’ ability to use or disclose any material Intellectual Property, in each case, other than (A) Contracts licenses for the license of commercially available, off-the-shelf software used by the Company or any of its Subsidiaries or (B) Contracts for agreements entered into by the non-exclusive license Company or any of Intellectual Property its Subsidiaries with customers in the ordinary course of business; ;
(xix) except in connection with the transactions contemplated by this Agreement partnership, joint venture, limited liability company or other similar agreement or arrangement (includingincluding any agreement providing for joint research, for the avoidance of doubt, the Pre-Closing Restructuringdevelopment or marketing), Contracts ; and
(xx) contracts relating to the acquisition or disposition (whether by merger, sale of equitystock, sale of assets or otherwise) of any Person or material line of business entered into since during the Original Acquisition Date past three (and including the transactions consummated on the Original Acquisition Date3) years or the future acquisition or disposition (whether by merger, sale of equitystock, sale of assets or otherwise) of any Person or material line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationsbusiness.
(b) The Company has made available to the Purchaser true and correct copies of each contract listed on the Contracts Schedule, the Intellectual Property Schedule and the Employee Benefits Schedule, in each case together with all amendments, modifications or supplements thereto. Each Material Contract of the contracts listed or required to be listed on the Contracts Schedule is in full force and effect, and is a the legal, valid and binding obligation of and enforceable against the Company or a any Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of and against the other parties thereto enforceable against each of them in accordance with its terms. Except as set forth on the Contracts Schedule, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurredcontract listed on the Contracts Schedule, and, to the knowledge of the Company, the other party to each of the Material contracts listed on the Contracts Schedule is not in material default or material breach thereunder. No Except as set forth on the Contracts Schedule, no event has occurred which would, that with or without the lapse of time or the giving of notice or both, both would constitute a material breach or material default on the part of the Company Company, or any Subsidiary of the Company or, to the knowledge of the Company, or permit any early terminationother party under any contract listed on the Contracts Schedule. The Company and its Subsidiaries have not, modification, acceleration or cancellation of, or otherwise adversely affect and to the knowledge of the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No no other party to any Material Contract contract listed on the Contracts Schedule has (i) exercised any termination rights with respect thereto, and no party has to any contract listed on the Contracts Schedule or (ii) given written notice of any material dispute with respect to any Material Contract. Neither contract listed on the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoContracts Schedule.
Appears in 1 contract
Sources: Merger Agreement (Hubbell Inc)
Contracts and Commitments. (a) Neither Except as filed as an exhibit to Company’s SEC Reports, set forth on Schedule 3.15, or except as contemplated by this Agreement, neither Company, nor the Company Subsidiaries, nor any of its Subsidiaries are the entities listed on Schedule 3.1(b) is a party to any: or bound by any oral or written contract, obligation or commitment of any type in any of the following categories:
(i) Contract containing nonagreements or arrangements that contain severance pay, understandings with respect to tax arrangements, understandings with respect to expatriate benefits, or post-competition employment liabilities or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; obligations;
(ii) Contract agreements or plans under which any of benefits will be increased or accelerated by the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment occurrence of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; , or under which the value of the benefits will be calculated on the basis of any of the transactions contemplated by this Agreement;
(xiiii) agreement agreements, contracts or indenture commitments currently in force relating to the borrowing disposition or acquisition of money or to mortgaging, pledging or otherwise placing a Lien (assets other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, or relating to an ownership interest in any Contracts with any supplier required to be listed on Schedule 5.22; corporation, partnership, joint venture or other business enterprise;
(xviiiv) material Contract with a Governmental Body; (xviii) Contracts pursuant to agreements, contracts or commitments for the purchase of materials, supplies or equipment, under which the aggregate payments for the past 12 months exceeded $250,000, which are with sole or single source suppliers;
(v) guarantees or other agreements, contracts or commitments under which Company or any of its the Company Subsidiaries grants to a third partyis absolutely or contingently liable for (A) the performance of any other Person, firm or corporation (other than Company or the Company Subsidiaries), (B) the whole or any part of the indebtedness or liabilities of any other Person, firm or corporation (other than Company or the Company Subsidiaries), or (C) indemnification obligations to officers and directors;
(vi) powers of attorney authorizing the incurrence of a third party grants to material obligation on the part of Company or the Company Subsidiaries;
(vii) agreements, contracts or commitments which limit or restrict (A) where Company or any of its Subsidiariesthe Company Subsidiaries may conduct business, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts the type or lines of business (current or future) in which they may engage, or (C) any acquisition of assets or stock (tangible or intangible) by Company or any of the Company Subsidiaries;
(viii) agreements, contracts or commitments, under which the aggregate payments or receipts for the non-exclusive license past 12 months exceeded $250,000, containing any agreement with respect to a change of Intellectual Property control of Company or any of the Company Subsidiaries;
(ix) agreements, contracts or commitments for the borrowing or lending of money, or the availability of credit (except credit extended by Company or any of the Company Subsidiaries to customers in the ordinary course of business; business and consistent with past practice);
(xixx) except in connection with the transactions contemplated by this Agreement (includingany hedging, option, derivative or other similar transaction and any foreign exchange position or contract for the avoidance exchange of doubtcurrency; or
(xi) any agreement, contract or commitment otherwise required to be filed as an exhibit to a periodic report under the PreExchange Act, as provided by Rule 601 of Regulation S-Closing Restructuring)K promulgated under the Exchange Act. Notwithstanding the foregoing, Contracts relating Schedule 3.15 shall not include any agreements or contracts with respect to proprietary customer and sales information including the identity of and information regarding distributors, resellers, partners and end users and information regarding sales dollars, sales volumes and product revenues not publicly available. Each contract, agreement or commitment of the type described in this Section 3.15 is referred to herein as a "Company Contract” and each such Company Contract identified in Section 3.15(a)(i) through Section 3.15(a)(xi) is identified by name and date on Schedule 3.15(a) to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationsDisclosure Statement.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation Neither Company nor any of the Company or a Subsidiary of the Company which is party theretoSubsidiaries, and, nor to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto to a Company Contract, has breached, violated or defaulted under, or received notice alleging that such a material breach it has breached, violated or material default has occurreddefaulted under, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would(nor does there exist any condition under which, with or without the lapse passage of time or the giving of notice or both, constitute could reasonably be expected to cause such a material breach breach, violation or material default under), any Company Contract, other than any breaches, violations or defaults which have not had, or could not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) Each Company Contract is a valid, binding and enforceable obligation of Company and to the knowledge of Company, of the Company other party or any Subsidiary of parties thereto, in accordance with its terms, and in full force and effect, except where the Companyfailure to be valid, binding, enforceable and in full force and effect has not had, or permit any early terminationcould not reasonably be expected to have, modificationindividually or in the aggregate, acceleration a Company Material Adverse Effect and to the extent enforcement may be limited by applicable bankruptcy, insolvency, moratorium or cancellation of, or otherwise adversely affect other laws affecting the Company’s or any enforcement of its Subsidiariescreditors’ rights governing or obligations under, any Material by general principles of equity.
(d) An accurate and complete copy of each Company Contract (other than agreements or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute contracts with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract technology related information that is not writing), together with all amendments, modifications or supplements theretopublicly available) has been made available (including via E▇▇▇▇) to Parent.
Appears in 1 contract
Sources: Merger Agreement (Cyberguard Corp)
Contracts and Commitments. 4.8.1 Company Material Contracts The Disclosure Schedule sets forth a -------------------------- complete and accurate list of (and, other than documents filed as exhibits to the SEC Filings, Purchaser has been provided complete and correct copies of) any of the following contracts to which the Company is a party or by which the Company is bound (each, a "Company Material Contract"):
(a) Neither all written management, compensation, employment or other contracts entered into with any executive officer, director or key employee of the Company;
(b) all contracts under which the Company nor has any outstanding indebtedness, obligation or liability for borrowed money or the deferred purchase price of property or has the right or obligation to incur any such indebtedness, obligation or liability, in each case in an amount greater than $100,000 and in the aggregate more than $1,000,000;
(c) all bonds or agreements of guarantee or indemnification under which the Company acts as surety, guarantor or indemnitor with respect to any obligation (fixed or contingent) in an individual amount or potential amount greater than $100,000 or in the aggregate more than $1,000,000;
(d) all noncompete or similar agreements;
(e) all partnership and joint venture agreements;
(f) all agreements relating to material acquisitions or dispositions of any business or product line;
(g) all insurance policies currently in effect and covering the Company, its Subsidiaries are a party to any: operations or personnel;
(h) all bonus, profit sharing, compensation, severance, termination, stock option, pension, retirement, deferred compensation, employment or other employee benefit agreements, trusts, plans, funds or other arrangements for the benefit or welfare of any director, officer or employee of the Company;
(i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport all agreements pursuant to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of which the Company or has agreed to pay any of its Subsidiaries to engage in any line of business or to compete rebates;
(j) all private label agreements with any Person; (ii) Contract under which any of the Company's customers;
(k) all supply agreements with any of the Company's suppliers including co-packers, together with any modification thereof or subsequent agreement related thereto; and
(l) all agreements, together with any modification thereof or subsequent agreement related thereto, pursuant to which the Company has licensed from, or its Subsidiaries has made advances to, a third party any product formulations, inventions, trade secrets, know-how, trademarks, trademark registrations, trade names, copyrights or loans other intellectual property that are material, individually or in the aggregate, to another Person in excess the Company. The term Company Material Contract does not include any purchase orders having a duration of one hundred thousand dollars $100,000year or less for products, other than to inter-company loans services or advances to any employee inventory issued or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses received in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Sources: Merger Agreement (Kraft Foods Inc)
Contracts and Commitments. (a) Neither The Company Disclosure ------------------------- Letter sets forth a true, correct and complete list of the following contracts to which the Company nor any of its Subsidiaries are or a Subsidiary is a party (including every amendment, modification or supplement to any: the foregoing): (i) Contract containing non-competition any contracts of employment, (ii) agreements or non-solicitation arrangements for the purchase or sale of any assets (excluding such covenants contained otherwise than in customary non-disclosure the ordinary course of business), (iii) agreements, contracts or indentures relating to the borrowing of money, (iv) covenants agreements with unions, material independent contractor agreements and material leased or otherwise temporary employee agreements, (v) tower site leases and other leases of any real property involving annual rent of $25,000 or more, (vi) programming and retransmission consent agreements, (vii) contracts containing covenants that purport to restrict limiting the freedom of the Company’s , or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries , to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment entity and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation other than respect to contracts identified in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company Disclosure Letter pursuant to Section 3.7, all other contracts, agreements or its Subsidiaries; (x) Contract providing for commitments involving annual payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated made by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of $100,000. Except for agreements, arrangements or commitments disclosed in the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is a party to any agreement, arrangement or commitment which is party thereto, and, material to the knowledge business of the CompanyCompany taken as a whole. The Company has delivered or made available true, correct and complete copies of the other parties thereto enforceable against each of them in accordance with its termsall such agreements, in each case, subject arrangements and commitments to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equityParent. Neither the Company nor any Subsidiary of the Company (as applicable) its Subsidiaries is in material default under any Material Contractsuch agreement, no party thereto arrangement or commitment which has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Companyhad, or permit any early terminationcould reasonably be expected to have, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any a Company Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoAdverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Sprint Corp)
Contracts and Commitments. (a) Neither Schedule 4.10 lists the following written and oral agreements to which any Company nor Group member is a party as of the date of this Agreement (other than this Agreement and other agreements entered into as required pursuant to this Agreement) (each a “Company Group Contract” and collectively, the “Company Group Contracts”):
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $25,000 per annum or having a remaining term longer than twelve months;
(ii) any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which involves payments in excess of $25,000 per annum, or (B) in which Company Group has any “most favored nation” pricing provisions or exclusivity rights;
(iii) any agreement concerning the establishment or operation of a partnership, joint venture or limited liability company;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed a lien or security interest on any of its Subsidiaries are a party to any: assets, tangible or intangible;
(iv) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict any agreement for the Company’s or disposition of any of its Subsidiaries’ business activity or limit the freedom significant portion of the assets or business of Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; Group (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses sales of products in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements any agreement for the acquisition of the assets or arrangements; (v) Contract business of any other entity (other than Franchise Agreementspurchases of inventory, components or services in the ordinary course of business);
(vi) any agreement concerning exclusivity or confidentiality;
(vii) any employment, consulting or similar agreement with any current or former officer, manager or stockholder of Company Group that grants is not terminable at will by Company Group or involving annual payments in excess of $25,000;
(viii) any agreement which contains any provisions requiring Company Group to indemnify any Person other than party (excluding indemnities contained in agreements for the purchase, sale or license of products or services entered into in the ordinary course of business);
(ix) any agreement that could reasonably be expected to have the effect of prohibiting or impairing the conduct of the Business;
(x) any agreement under which any Company Group member is restricted from engaging in the Business in any geographic area, during any period of time or any segment of its Subsidiaries the market or line of business;
(A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vixi) collective bargaining agreement or Contract contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) labor union or any bonus, pension, profit sharing, retirement or any other form of deferred compensation plan, other than as set forth in Section 5.14(a) plan or the Disclosure Schedules relating thereto; (viii) any stock purchase, stock option option, hospitalization insurance or similar plan; plan or practice;
(ixxii) Contract for change of control or severance agreement or similar arrangement;
(xiii) contract under which any of Company Group member has advanced or loaned any other Person amounts in the employment aggregate exceeding $25,000, other than trade credit extended in the ordinary course of business;
(xiv) agreement with respect to the lending or investing of funds;
(xv) management, consulting, advertising, marketing, promotion, technical services, advisory or other contract or similar arrangement relating to the design, marketing, promotion, management or operation of any individual on a full-time or consulting basis (A) providing for base compensation Company Group member involving payments in excess of one hundred thousand dollars $25,000 per year;
($100,000xvi) per annum, and contracts that incur indebtedness or incur or suffer to exist any lien or encumbrance;
(B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xivxvii) lease or agreement under which it is lessor of or permits any third-third party to hold or operate any property, real or personal, owned or controlled by it, calling for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred $25,000 per year;
(xviii) agreement or group of related agreements with the same Person for the purchase of products or services under which the annual expense of such products and fifty thousand dollars services has a price in excess of $25,000;
(xix) contracts with any Person containing any provision or covenant prohibiting or limiting the ability of any Company Group member to engage in any business or compete with any Person concerning the Business or prohibiting or limiting the ability of any Person to compete with the Business or any Company Group member;
(xx) any other agreement (or group of related agreements) either involving more than $350,000) in the aggregate; (xvi) other than purchase orders 25,000 and not entered into in the ordinary course of business, ;
(xxi) any Contracts provider agreement; and
(xxii) any agreements with patients.
(b) Company Group will deliver to the Purchaser a complete and accurate copy of each Company Group Contract and a written summary of any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which oral contracts included among the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars Group Contracts ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property excluding oral contracts entered into in the ordinary course of business; ). With respect to each Company Group Contract, except as disclosed in Schedule 4.10: (xixi) except in connection with the transactions contemplated by this Agreement (includingagreement is legal, for the avoidance of doubtvalid, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (binding on and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business enforceable against Company Group and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect; (ii) neither any Company Group member, nor, to Company’s Knowledge, any other party, is in breach or violation of, or default under, any such agreement, and no event has occurred, is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, andpending or, to Company’s Knowledge, is threatened, which, after the knowledge giving of the notice, with lapse of time, or otherwise, would reasonably be expected to constitute a breach or default by Company Group or, to Company’s Knowledge, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as agreement; and (iii) such Company Group Contract does not have a result of COVID-19 or other force majeure events. The Company has made available to change-in-control provision that will be triggered by the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretotransactions contemplated by this Agreement.
Appears in 1 contract
Contracts and Commitments. As of the date hereof, Section 4.15 of the Seller Disclosure Schedule contains a complete and accurate list of all contracts (awritten or oral), plans, undertakings, commitments or agreements or pending negotiations (including, without limitation, intercompany contracts) Neither ("Company Contracts") of the following categories to which the Company nor or any of its Subsidiaries are is a party or by which any of them is bound as of the date of this Agreement:
(a) employment contracts, including, without limitation, contracts to any: (i) Contract containing non-competition employ executive officers and other contracts with officers, directors or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict stockholders of the Company’s , and all severance, change in control or similar arrangements with any officers, employees or agents of the Company that will result in any obligation (absolute or contingent) of the Company or any of its Subsidiaries’ business activity Subsidiaries to make any payment to any officers, employees or limit agents of the Company following the consummation of the Contemplated Transactions or termination or change of terms and conditions of employment;
(b) collective bargaining agreements;
(c) Company Contracts for the purchase of inventory, supplies or services which are not cancellable (without material penalty, cost or other liability) within one year and, other than Company Contracts described elsewhere in this Section 4.15, other Company Contracts involving annual expenditures or liabilities in excess of $50,000 which are not cancellable (without material penalty, cost or other liability) within 90 days;
(d) promissory notes, loans, agreements, indentures, evidences of indebtedness or other instruments providing for the lending of money, whether as borrower, lender or guarantor;
(e) Company Contracts containing covenants limiting the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; Person or operate at any location;
(iif) any Company Contract under pending for the acquisition or disposition, directly or indirectly (by merger or otherwise) of material Assets (other than inventory) or capital stock of any Person (including, without limitation, the Company or any of its Subsidiaries);
(g) other than Company Contracts described elsewhere in this Section 4.15 or Company Contracts which may be omitted pursuant to the specific size limitations set forth in other provisions of this Section 4.15, Company Contracts between the Company and any of its wholly owned Subsidiaries, on one hand, and any affiliate of the Company which is not wholly owned, directly or its Subsidiaries has made advances indirectly by the Company on the other hand;
(h) any lease (whether of real or loans to another Person in excess personal property) providing for annual rentals of one hundred thousand dollars $100,00015,000 or more;
(i) any sales, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses distribution or other customary out-of-pocket expenses in similar agreement providing for the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than sale by the Company or any of its Subsidiaries of materials, supplies, goods, services (A) most favored pricing provisions including drilling services), equipment or other assets; and
(Bj) any exclusive rightspartnership, rights of first refusal, rights of first negotiation joint venture or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative arrangement. True and complete copies of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth the written Company Contracts identified in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result 4.15 of the transactions contemplated by this Agreement; (xi) agreement Seller Disclosure Schedule have been delivered or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoBuyer.
Appears in 1 contract
Contracts and Commitments. (a) Neither the Company nor any of its Subsidiaries are a party to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom Section 4.14 of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any Disclosure Letter sets forth each of the Company or its Subsidiaries has made advances or loans to another Person in excess following types of one hundred thousand dollars $100,000, material Contracts (other than to inter-company loans or advances to any employee or director this Agreement and Contracts in connection with travelthe Agreement, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iiiif any) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants is a party (collectively, the “Material Contracts”):
(i) that (A) is an indenture, credit agreement, loan agreement, collateral agreement to any loan, guarantee, note, mortgage or other agreement providing for indebtedness for borrowed money which exceeds NT$50,000,000 (or the equivalent in another currency) during any 12-month period or (B) creates any obligation under any interest rate, currency or commodity derivatives or hedging transaction;
(ii) that is a Lease Agreement material to the operation of the Company Group;
(iii) relating to a joint venture, joint development, partnership, consortium or similar Contract with any third party, or a third party grants Person that is material to the business of the Company Group;
(iv) with Significant Customers;
(v) with Significant Suppliers;
(vi) with any related Person not otherwise disclosed in the Company Financial Statements or in the Company Public Reports;
(vii) that is a settlement, conciliation or similar agreement (A) that materially restricts any Company Group member from undertaking its business as currently conducted or (B) that would require a Company Group member to pay consideration of its Subsidiaries, more than NT$30,000,000 after the Effective Date;
(viii) that purports to grant a license to any Intellectual Property, Property Rights held by any upstream Affiliate of the Company Group (including a license that would come into effect as a result of or in each case involving consideration in excess connection with the consummation of fifty thousand dollars the Share Swap);
($50,000ix) per annum, other than with (A) Contracts any of the five (5) highest paid employees or officers of the Company Group (based on total remuneration for the license of commercially available, off-the-shelf software or fiscal year 2018); (B) Contracts for any current employee, officer, director or supervisor of the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except Company Group who is entitled, in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuringeither alone or in connection with additional or subsequent events), Contracts relating to a bonus, retention bonus, severance or termination pay or other benefits in the acquisition event of change in control; or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xxC) any settlement agreement with any third party or present or former employee, officer, director or manager supervisor of the Company pursuant Group under which a Company Group member has continuing obligations to which such Person equal to or greater than NT$3,000,000;
(x) (A) relating to the acquisition, issuance, voting, registration, sale or transfer of any securities or (B) providing any Person with any preemptive right, right of participation, right of maintenance, right of first refusal or similar right with respect to any securities of the Company, in each case other than Contracts evidencing currently outstanding stock options granted under the Company Equity Plan;
(xi) providing for any guaranty to any Person other than a Subsidiary in an amount in excess of NT$3,000,000;
(xii) that may require a Company Group member to guarantee, reimburse, pledge, defend, hold harmless or indemnify any other Person with respect to Liabilities arising out of its Subsidiaries has material ongoing obligationsEnvironmental Laws;
(xiii) that constitutes an irrevocable power of attorney or similar Contract; or
(xiv) the breach, absence or termination of which would reasonably be expected to have a Material Adverse Effect.
(b) Each Copies of all written Material Contract is in full force and effect, and is a legal, valid and binding obligation of Contracts have been made available to Buyer prior to the Company or a Subsidiary of the Company which is party thereto, and, to date hereof.
(c) To the knowledge of the Company, of the other parties thereto (i) each Material Contract currently in effect is valid and enforceable against each of them the applicable Company Group member in accordance with its termsterms and (ii) no event has occurred, in each caseand no circumstance or condition exists, subject to bankruptcythat (with or without notice of lapse of time) will, insolvencyor would reasonably be expected to, reorganization, moratorium and similar Laws relating to (A) constitute a violation or affecting creditors’ rights or to general principles breach of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any such Material Contract, no party thereto has given (B) give any Person the right to any other party thereto notice alleging that accelerate the maturity or performance of such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or (C) give any Person the right to cancel, terminate or modify the terms of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any such Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Neither As of the Company nor date of execution of this Agreement, Schedule 4.22(a) of the Signing Disclosure Schedule, and as of the Closing Date, Schedule 4.22(a) of the Closing Disclosure Schedule, contains a complete and accurate list of all agreements, contracts, licenses, instruments, obligations and commitments of any kind, whether written or oral, including all indentures, loans, mortgages leases, notes, installment obligations (including finance leases), consulting agreements, services agreements and agreements for the sale of goods or provision of services, any agreement to acquire any debt obligations of others, power of attorney or any obligations or liabilities (whether absolute, accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the obligation of any other Person, corporation, partnership, joint venture, association, organization or other entity (collectively, the "Contracts") for which any of its Subsidiaries are a party to anythe following apply: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to is a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to by which the Company or any of its Subsidiaries has material ongoing obligationsor any of their properties or assets may be bound or (ii) entered into by or on behalf, at the 45 <PAGE> direction, with the consent or under the authority of (A) any past or present Additional KSO Employee, (B) the Company, any of its Subsidiaries or any of the Selling Shareholders, (C) any past or present officer, director, commissioner or employee of the Company, any of its Subsidiaries or any of the Selling Shareholders or (D) any past or present officer, director, commissioner or employee of any Affiliate of any Selling Shareholder to which the KSO Unit is a party or by which the KSO Unit or any of its properties or assets may be bound.
(b) Each Material Contract is in full force and effectExcept for the KSO Agreement, and each of the Contracts is a legal, valid valid, binding and binding enforceable obligation of the Company or a Subsidiary of the Company which is party parties thereto, and, to except as the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganizationreorganization or other similar laws affecting the enforcement of Purchaser's rights generally and (ii) general equitable principles. Except for the KSO Agreement, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither neither the Company nor any Subsidiary of the Company (as applicable) its Subsidiaries is in material default under or in violation of, nor has any Material Contract, no party thereto has given to any other party thereto notice alleging event occurred that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, lapse of time or both would constitute a material breach default or material event of default under, nor is there any valid basis for any claim of default under or violation of, any Contract. To the Knowledge of the Company Selling Shareholders, the KSO Unit is not in default under or in violation of any Subsidiary Contract and no event has occurred that with the giving of notice or lapse of time or both would constitute a default or event of default under, and there is no basis for any claim of default under or violation of, any Contract. To the Knowledge of the CompanySelling Shareholders, there has been no default, violation or permit any early termination, modification, acceleration event that with the giving of notice or cancellation of, lapse of time or otherwise adversely affect both would constitute a default or event of default on the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or part of any material right or obligation thereunder. No other party to any Material a Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contractexcept for the KSO Agreement. Neither the Company, nor any Subsidiary As of the CompanyClosing Date, has delivered notice to or contacted any counterparty to any Material each Contract requesting an amendment to such contract regarding then in effect was entered into in the inability ordinary course of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure eventsbusiness consistent with past practice. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.46 <PAGE> Section
Appears in 1 contract
Contracts and Commitments. (aExcept as set forth on Schedule 4(n)(i) Neither attached hereto, no member of the Company nor any of its Subsidiaries are Group is a party to or bound by (or has offered to any Person or otherwise resolved to become a party to or bound by) any: :
(i) Contract containing nonemployment, severance, engagement, service or other similar agreement or offer letter, as applicable, to any current or former employee, director, officer, consultant, independent director, or other service provider that provides for (A) the employment or engagement of any Person on a full-competition time, part-time, independent contractor or non-solicitation consulting basis with an annual base compensation that exceeds $100,000, (excluding such covenants contained B) providing bonus, equity, severance benefits or change in customary non-disclosure agreementscontrol benefits, or retention or transaction bonuses or similar benefits or (C) covenants or otherwise containing covenants that purport relating to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; loans;
(ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation planplan or arrangement;
(iii) agreement relating to any option, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) restricted stock, restricted stock purchaseunit, profits interests, stock option appreciation, phantom stock or similar plan; arrangement;
(ixiv) Contract for the employment guarantee of any individual on a full-time Liability or consulting basis obligation;
(Av) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, of or holds or operates any personal property owned by any other party, except for any lease of personal property under which the aggregate annual rental exceeds payments do not exceed $50,000;
(vi) agreement under which it is a licensee of or is otherwise granted by a third party any rights to use any Intellectual Property (other than (A) non-exclusive end user licenses of commercially available Software used solely for the Company Group’s internal use and with a total replacement cost of less than $100,000 for its internal business purposes and (B) non-disclosure or confidentiality agreements entered into in the ordinary course of business, and backup licenses from contractors);
(vii) agreement under which it is a licensor or otherwise grants to a third party any rights to use any Intellectual Property (other than Intellectual Property licensed to customers on a non-exclusive basis in the ordinary course of business on one hundred thousand dollars of the Company Group’s form agreements);
($100,000); viii) joint development agreement, joint venture agreement, collaboration agreement, partnership agreement, strategic alliance agreement or similar agreement;
(xivix) lease or agreement under which it is lessor of or permits any third-third party to hold or operate any propertypersonal property owned or controlled by it;
(x) collective bargaining agreement or other agreement with any labor union, real works council or personalother labor organization;
(xi) settlement, for conciliation or similar agreement with any Governmental Authority or pursuant to which any member of the Company Group will have any material outstanding monetary or other obligation after the date hereof;
(xii) agreement pursuant to which the annual rental exceeds one hundred thousand dollars Company Group is granted a lease in, a sublease in, or the right to use or occupy any land or building;
(xiii) Government Contract;
(xiv) agreement or group of related agreements with the same party that (A) is not a service contract or subcontract between any member of the Company Group and a service customer of the Company Group and (B) involves consideration in excess of $100,000); ;
(xv) Contracts requiring agreement relating to the acquisition or providing for disposition of assets (including Intellectual Property) or any capital expenditure that requires annual future payments interests in any business enterprise outside of the Company Group’s ordinary course of business and in an amount in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; 100,000;
(xvi) agreement between any member of the Company Group, on the one hand, and any “app stores”, websites or other than purchase orders entered into third Person distribution platforms on or through which the Company Group, directly or indirectly, distributes or otherwise makes available any Company Products (collectively, the “Distribution Platforms”), together with the terms of service, policies and any other contract applicable to such Distribution Platforms;
(xvii) agreement relating to the sharing or allocation of Intellectual Property by and between the Company, on the one hand, and any Seller, on the other hand;
(xviii) agreement concerning confidentiality or non-competition or prohibiting any member of the Company Group or the Business from freely engaging in business or otherwise including provisions on joint price-fixing, market or customer sharing, “most-favored nations,” exclusivity or market classification;
(xix) agreement not executed in the ordinary course of business, any Contracts not consistent with fair market terms, conditions and prices or with Applicable Laws and regulations or otherwise not made on arm’s length terms and conditions;
(xx) agreement relating to the distribution, marketing or sales of its services;
(xxi) agreement for the development of Intellectual Property for the benefit of the Company Group;
(xxii) agreement relating to the provision of co-location or software, data or infrastructure hosting services to the Company Group;
(xxiii) agreement with any supplier required to be customer listed on Schedule 5.22; (xvii4(s)(i)(A) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than 4(s)(i)(B);
(A) Contracts agreement containing an agreement by any member of the Company Group to provide any Person with access to the source code for the license of commercially available, off-the-shelf software any Company Products or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of contract between any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager member of the Company pursuant Group and an escrow agent to which provide for the source code for any Company Products to be put in escrow; or
(xxv) other agreement (or group of related agreements) material to the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effectGroup. Except as specifically disclosed on Schedule 4(n)(i), and is a legal, valid and binding obligation each member of the Company or a Subsidiary of the Company which Group has performed in all material respects all obligations required to be performed by it and is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is not in material default under or in breach of nor in receipt of any Material Contractclaim of default or breach under any agreement to which it is a party, and no party thereto event has given to any other party thereto notice alleging that occurred or circumstance exists which, with the delivery of notice, the passage of time or both, would constitute such a material default, breach or material default has occurred, and, to the knowledge event of noncompliance under any agreement. To the Company’s Knowledge, the other party to each agreement has performed in all material respects all obligations required to be performed by it under such agreement. Each agreement (A) was awarded to and is held in the name of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default applicable member of the Company or any Subsidiary Group and is legal, valid, binding and enforceable against such member of the Company Group and, to the Knowledge of the Company, or permit against any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No other party to any Material Contract has exercised any termination rights with respect theretosuch contract, agreement or arrangement, and no party has given written notice of any material dispute with respect (B) will continue to any Material Contract. Neither be legal, valid and enforceable on identical terms following the Company, nor any Subsidiary consummation of the Company, transactions contemplated by this Agreement. Buyer has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability been supplied with a correct and complete copy of each of the Company or any Subsidiary contracts which are referred to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writingon Schedule 4(n)(i), together with all amendments, modifications waivers or supplements other changes thereto.
Appears in 1 contract
Sources: Securities Purchase Agreement (Integral Ad Science Holding Corp.)
Contracts and Commitments. (a) Neither Except for any Leases or guarantees entered into in connection with any Leases, or as set forth on Schedule 3.10(a), and except for agreements entered into by any Group Company after the date hereof in accordance with Section 5.01, no Group Company nor any of its Subsidiaries are a is party to any: :
(i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any material portion of the assets of the Company or any of its Subsidiaries; Group Companies;
(xiiii) guaranty of any obligation for borrowed money or other material guaranty; ;
(xiiiiii) lease or agreement Contract under which it is lessee oflessee, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars $25,000 ($100,000excluding the Leases); ;
(xiviv) lease Contract with any Specified Customer or agreement under which it is lessor of or permits Specified Supplier;
(v) Contract with any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars Specified Affiliated Network;
($100,000); (xvvi) Contracts requiring with any Specified Publisher;
(vii) Contracts relating to any business acquisition or disposition entered into by any Group Company within the last three (3) years, or with respect to which there are any remaining material obligations;
(viii) any partnership, joint venture or other similar agreement or arrangement;
(ix) any Contract providing for the settlement or compromise of any capital expenditure Action relating to the Group Companies within the past three (3) years that requires annual future payments has obligated a Group Company to pay an amount in excess of three hundred and fifty thousand dollars $25,000, or that imposes material ongoing obligations or restrictions on any of the Group Companies;
(x) Contracts granting to a Group Company any licenses to Intellectual Property Rights owned by a third party (other than (A) “off-the-shelf” or other commercially available software or software services with annual costs of less than $350,000100,000, (B) Contracts entered into with employees, contractors, consultants, service providers, resellers or distributors in the aggregate; Ordinary Course of Business, (xviC) other than purchase orders confidentiality agreements entered into in the ordinary course of businessOrdinary Course, any Contracts with any supplier required to be listed on Schedule 5.22; and (xviiD) material Contract with a Governmental Body; Open Source Software agreements;
(xviiixi) Contracts pursuant to which the a Group Company or any of its Subsidiaries grants to a third party, or a third party grants any licenses to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars IP ($50,000) per annum, other than non-exclusive licenses granted in the Ordinary Course of Business);
(xii) Contract that (A) Contracts for restrains the license ability of commercially available, off-the-shelf software a Group Company to compete or conduct business in a product line or line of business or in any territory or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition restricts a Group Company from purchasing any product or disposition (whether by merger, sale of equity, sale of assets or otherwise) of service exclusively from any Person or line that contains a “most favored nation” or similar provision;
(xiii) Contract with any employee or individual independent contractor with any Group Company which provides for annual base compensation in excess of business entered into since the Original Acquisition Date $200,000, excluding offer letters which provide for at-will employment and no severance obligations; or
(and including the transactions consummated on the Original Acquisition Datexiv) any collective bargaining agreement or the future acquisition other Contract with any labor organization or disposition (whether by merger, sale of equity, sale of assets or otherwise) other representative of any Person or line employees of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationsa Group Company.
(b) Buyer either has been supplied with, or has been given access to, a true and correct copy of all written Contracts that are referred to or required to be referred to on Schedule 3.10(a) (collectively, such Contracts whether or not written, the “Material Contracts”).
(c) Each Material Contract is valid and binding on the Group Companies and is in full force and effecteffect (except as limited by the Remedies Exception). No Group Company has, in any material respect, violated or breached, or committed any default under, any Material Contract. To the knowledge of Seller, no other Person has materially violated or breached, or committed any material default under, any Material Contract. No event has occurred and is a legal, valid and binding obligation of the Company continuing through any Group Company’s actions or a Subsidiary of the Company which is party thereto, andinactions or, to the knowledge of the CompanySeller, any actions or inactions by any other party thereto, that will result in a material violation or breach of any of the other parties thereto enforceable against each provisions of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Neither Section 3.12(a) of the Company nor Disclosure Schedules sets forth a true, complete and correct list of the following Contracts in effect as of the date hereof to which any member of its Subsidiaries are the Company Group is a party or is bound (excluding any Company Plan) (collectively, whether set forth or required to any: be set forth on Section 3.12(a) of the Company Disclosure Schedules, the “Material Contracts”):
(i) any Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or (A) Indebtedness, (B) to mortgaging, pledging or otherwise placing a any Lien (other than a Permitted LienLiens) on any portion of the assets of the Company Group, (C) the making of any loan or investment, (D) any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or (E) any other material guaranty; provided, however, that, the foregoing shall not require the scheduling of any confidentiality agreements entered into in connection with any such Contract or indenture;
(xiiiii) lease or agreement any Contract under which it is lessee of(i) lessee, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars payments exceed $[*] or ($100,000); (xivii) lease or agreement under which it is lessor of or permits any third-third party to hold or operate any property, real or personal, personal property for which the annual rental exceeds one hundred thousand dollars payments exceed $[*];
($100,000); (xviii) Contracts requiring any Government Contract under which any member of the Company Group has made or providing for any capital expenditure that requires received annual future payments in excess of three hundred and fifty thousand dollars $[*] for the past [*];
(iv) any Contract or group of related Contracts (provided that this clause (iv) shall not require the scheduling of any purchase order, other than open purchase orders that provide for payments in excess of $350,000[*]) with the same party for the purchase or sale of products or services that provide for annual payments by or to the Company Group in excess of $[*] during any twelve month period;
(A) any Contract relating to any merger, consolidation, business combination, acquisition or disposition (including any acquisition or disposition of a material amount of stock or assets of any Person or any real property) by any member of the Company Group under which any material continuing obligations (other than confidentiality obligations) remain outstanding or (B) any partnership, joint venture, strategic alliance, exclusive collaboration or exclusive development (including exclusive joint development with the Company Group) agreement or similar arrangement relating to the Company Group;
(vi) all Contracts involving a settlement or compromise of any Action to which any member of the Company Group or any of their respective directors or officers (in their capacity as such) is a party (except to the extent disclosed under clause (viii) below) (A) that has been entered into in the aggregate; last [*] years that has any material continuing obligations (xviother than confidentiality obligations) on the part of the Company or its Subsidiary in excess of $[*] or (B) under which the Company or any of its Subsidiaries is required to comply with any material covenants (other than confidentiality obligations) after the date hereof;
(vii) any Contract pursuant to which any member of the Company Group (A) is granted any license or other right or immunity (including any sublicense, option, right of first refusal or other preferential right or covenant not to be sued) under any material Intellectual Property, other than any material transfer agreements, clinical trial agreements, nondisclosure agreements, services agreements, commercially available Software-as-a-Service offerings, off-the-shelf software licenses or similar generally available licenses entered into in the Ordinary Course of Business or (B) grants any license or other right or immunity (including any sublicense, option, right of first refusal or other preferential right or covenant not to sue) under any material Intellectual Property, other than any material transfer agreements, clinical trial agreements, nondisclosure agreements, services agreements or non-exclusive outbound licenses entered into in the Ordinary Course of Business that are incidental and not material to performance under the applicable agreements;
(viii) any Contract relating to the ownership or development of any material Company Owned IP (excluding intellectual property assignment agreements entered into with employees and independent contractors in the Ordinary Course of Business and material transfer agreements, clinical trial agreements or services agreements);
(ix) other than purchase or sale orders placed by the Company Group in the Ordinary Course of Business, any Contract (or group of related Contracts) for the purchase or sale of inventory, goods, products, equipment or other personal property, in each case, for annual payments by or to the Company Group of $[*] or more, in each case, other than confidentiality agreements entered into in the ordinary course of business;
(x) any Contract including covenants by any member of the Company Group that purport to restrict the ability of the Company Group from competing or conducting business in any territory;
(xi) any labor agreement, collective bargaining agreement or any Contracts other agreements or arrangements with any supplier required labor union, labor organization, or works council (each, a “CBA”);
(xii) any Affiliate Contract;
(xiii) any Contract (provided that this clause (xiii) shall not require the scheduling of any purchase order) that involves or is related to be listed on Schedule 5.22; (xviiA) a grant of any right of first offer or right of first refusal relating to any material Contract with a Governmental Body; (xviii) Contracts pursuant to which assets of the Company or its Subsidiaries, (B) any of its Subsidiaries grants to a third party, supplier or a third party grants vendor to the Company Group of products or services that cannot be obtained from another source for a substantially similar cost with substantially similar quality or quantity, (C) obligations to purchase total requirements of any products or service from any other Person, including minimum purchase obligations, or any of its Subsidiariessimilar “take or pay” provisions or (D) exclusive manufacturing rights, exclusive marketing or distribution rights, “most favored nation” pricing provisions or exclusive rights with respect to a license to any Intellectual Propertygeography, supply, service or product, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annumcase, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property confidentiality agreements entered into in the ordinary course of business; ;
(xixxiv) except any Contract requiring or otherwise relating to any future capital expenditures by the Company or its Subsidiaries in connection with the transactions contemplated by this Agreement excess of $[*] in any calendar year;
(including, xv) any Contract that provides for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) indemnification of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or its Subsidiary, in each case, which would reasonably be expected to require payments in excess of $[*] in any calendar year, other than indemnification obligations entered into in the ordinary course of its Subsidiaries has material ongoing obligationsbusiness;
(xvi) any Contract (provided that this clause (xvi) shall not require the scheduling of any purchase order) for the conduct of research studies, pre-clinical or clinical studies, manufacturing, distribution, supply, marketing or co-promotion of any products in each case which have been or which are being marketed, distributed, supported, sold or licensed out on a commercial basis, in each case by or on behalf of the Company; or
(xvii) any Contract (except for any purchase order) with a Material Supplier, other than confidentiality agreements entered into in the ordinary course of business.
(b) Each The Company has delivered to Parent or its counsel true, complete and correct copies (or, in the case of oral Contracts, summaries (in reasonable detail of all material provisions)) of each Material Contract (in each case, as amended to date) listed on Section 3.12(a) of the Company Disclosure Schedules. Each such Material Contract is a valid, binding and enforceable agreement of the applicable member of the Company Group party thereto and is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, effect and, to the knowledge Knowledge of the Company, of the each other parties party thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary .
(c) No member of the Company (as applicable) is Group has, in any material respect, violated or breached, or committed any default under under, any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, Contract and, to the knowledge Knowledge of the Company, the no other party thereto has materially violated or breached, or committed any material default under, any Material Contract (nor, to each the Knowledge of the Material Contracts is not in material default or material breach thereunder. No event has occurred which wouldCompany, with or without does there exist any condition which, upon the lapse passage of time or the giving of notice or both, constitute would reasonably be expected to cause such a material violation, breach or material default under any Material Contract). Since January 1, 2021, no member of the Company or Group has received any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to default or breach under any Material Contract. Neither the Company, nor any Subsidiary of the Company, No event has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract occurred as a result of COVID-19 actions or other force majeure events. The inactions of a member of the Company has made available to Group that will result in a material violation or material breach of any of the Purchaser true and correct copies provisions of each any Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoContract.
Appears in 1 contract
Contracts and Commitments. (a) Neither Except as set forth in Section 4.9(a) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries are is a party to anyany currently effective: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employmentlabor union; (viiii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract contract for the employment or engagement of any officer, individual employee or other person on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) 100,000 per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xiiii) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of and its Subsidiaries; (xiiiv) guaranty of any obligation for borrowed money or other material guaranty; (xiiiv) lease or agreement under which it is a lessee of, or holds or operates any real or personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xivvi) lease contract or agreement under which it is a lessor of or permits any third-third party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xvvii) Contracts requiring contract (or providing for group of related contracts with respect to a single transaction or series of related transactions) with any capital expenditure customer of the Company or its Subsidiaries that requires annual future payments generated recurring revenue in excess of three hundred and fifty thousand dollars $500,000 in the 12-month period ended September 30, 2013 (each such customer, a “Significant Customer”; (viii) contract involving the payment or receipt of royalties or other amounts of more than $350,000) 500,000, in the aggregate, calculated based on the revenues or income of the Company or its Subsidiaries or income or revenues related to any product of the Company or its Subsidiaries. Section 4.9(a) of the Company Disclosure Schedule lists the currently effective Contracts between the Company or its Subsidiaries and the top five (a) distributors, by revenue, and (b) suppliers, by turnover, of the Company and its Subsidiaries for the 12-month period ended September 30, 2013.
(b) The Company has heretofore delivered to, or made available to, the Purchaser Entities current and complete copies of (i) the Contracts listed (or required to be listed) in Section 4.9(a) of the Company Disclosure Schedule, or a written description thereof in the case of oral Contracts and (ii) each currently effective (A) joint venture, partnership and other similar Contract involving the sharing of profits of the Company or any of its Subsidiaries with any third party; (xviB) other than purchase orders Contract that limits the freedom of the Company or any of its Subsidiaries (or, after the Closing, Parent or its Subsidiaries) to compete in any line of business or within any geographic area or with any Person, or otherwise materially restricts the Company’s or any of its Subsidiaries’ (or, after the Closing, Parent or its Subsidiaries’) ability to solicit or hire any Person or solicit business from any Person except for confidentiality agreements and non-material contracts entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xviiC) Contract that could require the disposition of any material assets or line of business of the Company or its Subsidiaries (or, after the Closing, Parent or its Subsidiaries), other than Contracts for the sale of inventory entered into in the ordinary course of business; (D) Contract with a Governmental Bodycurrent or former officers, directors or employees of the Company or any of its Subsidiaries, in each case that provides for any unsatisfied obligation to pay compensation; (xviiiE) Contracts Contract that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries grants could be required to a third partypurchase or sell, or a third party grants to the Company or as applicable, any of its Subsidiaries, a license to equity interests in any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of businessPerson; (xixF) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant Contract to which the Company or any of its Subsidiaries has is a party, or by which any of them are bound, the ultimate contracting party of which is a Governmental Authority (including any subcontract with a prime contractor or other subcontractor who is a party to any such contract), other than purchase orders with hospitals involving the sale of product not in excess of $300,000 in the aggregate; (G) material ongoing obligations.
Contract granting any third party the exclusive right to develop, market, sell or distribute the Company’s or any of its Subsidiaries’ products or services; (bH) Each Contract containing commitments for material product development and with payment obligations by the Company in excess of $250,000; (I) Contract with any Affiliate; (J) Contract providing for indemnification by the Company or any of its Subsidiaries of any Person, except for non-material contracts entered into in the ordinary course of business; (K) Contract set forth in Section 4.12(c) or Section 4.12(d) of the Company Disclosure Schedule; and (L) Contract under which the consequences of a default or termination would reasonably be likely to have a Company Material Contract Adverse Effect, or a written description thereof in the case of oral Contracts (the Contracts described in clauses (i) and (ii), the “Material Contracts”). Except as set forth in Section 4.9(b) of the Company Disclosure Schedule, and except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, each of the Material Contracts is in full force and effect, effect (other than such Contracts that expire in accordance with their terms after the date of this Agreement) and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of neither the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) its Subsidiaries, is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, Contracts and, to the knowledge Knowledge of the Company, the other party to each of the such Material Contracts is not in material default or material breach thereunder. No thereunder and, to the Knowledge of the Company, no event has occurred which wouldthat, with or without the lapse of time or the giving of notice or both, would constitute a material breach or material default of thereunder by the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Cardiome Pharma Corp)
Contracts and Commitments. (aExcept as set forth on Schedules 4.10(b) Neither or 4.12, neither the Company nor any Subsidiary of its Subsidiaries are the Company is a party to any: the following types of agreements (iwritten or oral):
(a) Contract containing nonany partnership agreement or joint venture agreement which requires a payment, or delivery of assets or services, in excess of One Hundred Thousand Dollars ($100,000) in any 12-competition month period;
(b) any agreement with another Person materially limiting or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict restricting the Company’s or any of its Subsidiaries’ business activity or limit the freedom ability of the Company or any Subsidiary of its Subsidiaries the Company to enter into or engage in any market or line of business or to compete including agreements with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000exclusivity, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) “most favored customer” pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; provisions;
(vic) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract agreements for the employment sale of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) Subsidiaries other than purchase orders entered into in the ordinary course of businessbusiness or for the grant to any person of any preferential rights to purchase any of its assets;
(d) any lease, sub-lease, license, sub-license or other agreement with respect to real property;
(e) any Contracts agreement of the Company or any of its Subsidiaries with any supplier required Affiliate of the Company;
(f) any agreement of the Company or any of its Subsidiaries relating to be listed on Schedule 5.22; the acquisition, issuance, voting, registration, sale or transfer, preemptive rights, participation rights, rights of first refusal, repurchase or redemption rights of or with respect to any securities of the Company, other than those in connection with the Plan;
(xviig) any material Contract agreement with a Governmental Body; respect to the intellectual property of the Company and its Subsidiaries;
(xviiih) Contracts pursuant any collective bargaining or union agreement to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or is bound;
(i) any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts agreement relating to the acquisition incurrence, assumption, surety or disposition guarantee of any indebtedness;
(whether by mergerj) any agreement relating to interconnection, sale reciprocal compensation, co-location, cable TV programming and retransmission/must carry, conduits, pole attachments and rights of equityway with respect to the same; or
(k) any other agreement (or group of related agreements) the performance of which will require aggregate payments, sale or delivery of assets or otherwise) of any Person services, to or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which from the Company or any of its Subsidiaries has material ongoing obligations.
in excess of One Hundred Thousand Dollars (b$100,000) in any 12-month period. Each of the contracts set forth on Schedule 4.12 (the “Material Contract Contracts”) is in full force and effect, effect and is constitutes a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party theretoand/or its Subsidiaries, andas applicable, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, except as such enforceability may be limited by the General Enforceability Exceptions. The Company or one of its Subsidiaries, as applicable, has performed all of their material obligations (except those that have not yet become due) under, and is not in each caseviolation or breach of or default under, subject any of the Material Contracts, except for such non-performance, violation or breach which would not have or reasonably be expected to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equityhave a Company Material Adverse Effect. Neither The Company has paid in full all amounts owed by the Company nor any Subsidiary in connection with the Material Contracts, regardless of whether or not such amounts have been invoiced to the Company. To the Company’s knowledge, each of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party parties to each of the Material Contracts has performed all of their material obligations (except those that have not yet become due) under, and is not in material violation or breach of or default under, such Material Contracts, except for such non-performance, violations, breaches or material breach thereunderdefaults which would not have or reasonably be expected to have a Company Material Adverse Effect. No event has occurred which wouldExcept as set forth on Schedule 4.12, the execution of this Agreement and the consummation of the transactions contemplated hereby will not conflict with or without the lapse cause a breach of time or the giving of notice or both, constitute a material breach or material default any of the Company Material Contracts, and no notice to or approval or consent of any Subsidiary other party to any of the CompanyMaterial Contracts is required in order for those Material Contracts to continue in full force and effect without breach, or permit any early termination, modificationdefault, acceleration or cancellation of, or otherwise adversely affect any change in terms after the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary consummation of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoMerger.
Appears in 1 contract
Sources: Merger Agreement (Knology Inc)
Contracts and Commitments. (a) Neither Section 4.17(a) of the Company nor Disclosure Schedule lists each of the following Contracts (and all amendments, modifications and supplements thereto and all side letters to which the Company or any of its Subsidiaries are is a party affecting the current obligations of any party thereunder) to any: which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets are bound (each such Contract, and each Contract listed in Section 4.15 (Real Estate; Properties), 4.18 (Intellectual Property Rights) or 4.22 (Certain Loans and Other Transactions) of the Company Disclosure Schedule, as well as all Contracts required to be set forth (including in order to ensure the accuracy of the representations and warranties in) in Sections 4.17 (Contracts and Commitments), 4.15 (Real Estate; Properties), 4.18 (Intellectual Property Rights) or 4.22 (Certain Loans and Other Transactions) that is not so listed, a “Material Contract”):
(i) any Contract with any Governmental Entity;
(ii) any Contract with any telecommunications company or carrier, collocation company, or hosting or internet service provider;
(iii) any Contract or indenture relating to Indebtedness or any guarantee by the Company or its Subsidiaries of the obligations of any other party or relating to any interest rate, currency or commodity derivatives or hedging transactions;
(iv) any partnership, limited liability company agreement, joint venture, profit-sharing or similar agreement (other than agreements with sales agents containing non-competition revenue sharing agreements or non-solicitation arrangements) entered into with any Person;
(excluding such covenants contained in customary non-disclosure agreementsv) covenants any Contract for the acquisition, disposition, merger or otherwise containing covenants that purport to restrict sale or similar transaction involving any business or material assets (including Intellectual Property) of the Company’s Company or any of its Subsidiaries’ business activity , other than for Contracts that have been consummated as of the date of this Agreement for aggregate consideration under such agreement of less than $100,000 and for which the Company and its Subsidiaries have no continuing indemnification, “earn-out” or limit other material or contingent obligations;
(vi) any collective bargaining agreements, memoranda or understandings, settlements or other labor agreements with any union or labor organization applicable to the freedom Company, its Affiliates or their employees;
(vii) any Contract that obligates the Company or its Subsidiaries to make any capital commitment or expenditure, individually or in the aggregate, in excess of $100,000;
(viii) any employment, bonus, retention, severance or other similar agreement which (x) contains a change of control, or “golden parachute” provision or (y) that otherwise provides for base salary or base compensation in any fiscal year that is equal to or greater than $100,000;
(ix) any Contract which is performed (in whole or in part) outside of the United States, where a party that is a natural person to the agreement is not a United States citizen, or where all or a portion of the agreement is subcontracted to a natural person that is not a United States citizen;
(x) any Contract to which the Company or any of its Subsidiaries is a party or by which they or any of their assets are bound and which involves consideration or other obligations in excess of $100,000 annually;
(xi) all broker, dealer, manufacturer’s representative, distributor, franchise, agency, and consulting Contracts (not including distributor, franchise, agency and consulting Contracts with sales personnel that is terminable at the option of the Company without any Liability and is for a term of one-year and with substantially the same terms as the Company’s form of sales personnel agreement made available to Parent);
(xii) all Contracts involving the payment of royalties or other amounts payable by the Company or a Company Subsidiary calculated based upon the revenues or income of the Company or a Company Subsidiary or income or revenues related to any product of the Company or a Company Subsidiary (other than Contracts involving compensation in connection with the sale and distribution of any product of the Company or a Company Subsidiary entered into in the ordinary course of business);
(xiii) any Contract containing (A) most favored nation, exclusive rights, or minimum purchase requirements in favor of any third party, (B) any right of first refusal or first offer or (C) any provision that limits the ability of the Company or any Company Subsidiary to (x) compete or operate in any line of business, or with any Person or entity, or in any market or geographic area or during any period of time or (y) acquire or sell any product, assets or services or otherwise develop or distribute any technology (excluding license limitations contained in inbound licenses which limitations are of the type ordinarily included in commercial licenses);
(xiv) any Contract obligating the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000pay a minimum royalty, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses fee or other customary out-of-pocket expenses in the ordinary course payment regardless of business; usage or purchase;
(iiixv) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) any Contract (other than Franchise Agreements) that grants to any Person other than obligating the Company or any of its Subsidiaries (A) most favored pricing provisions to purchase or otherwise obtain a product or service exclusively from any Person or (B) sell or provide any exclusive rights, rights of first refusal, rights of first negotiation product or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments service exclusively to any employee, officer, director, consultant Person;
(xvi) all Contracts that result in any person or individual service provider as entity holding a result power of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of attorney from the Company or any of its Subsidiaries; Company Subsidiary that relates to the Company, any Company Subsidiary or their respective businesses;
(xiixvii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or Contract providing for indemnification, contribution or any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) guaranty other than purchase orders entered into any indemnities contained in Contracts for the purchase, sale or license of products or services in the ordinary course of businessbusiness and that are materially consistent with past practice pursuant to the Company’s standard forms, in the form made available to Parent;
(xviii) any Contract entered into since December 1, 2009, or for which the Company or its Subsidiaries have any ongoing obligations or potential Liabilities, to settle or compromise any Action, or any Action threatened in writing, other than (A) releases entered into with former employees or independent contractors of the Company which do not contain cash settlements in excess of $20,000 or (B) settlements of accounts payable in the ordinary course of business consistent with past practice for cash amounts paid prior to September 30, 2012 which do not exceed, individually or in the aggregate, $20,000;
(xix) with respect to any customer or Referral Partner required to be specified in Section 4.25(a) of the Company Disclosure Schedule, all Contracts with such customers or Referral Partners, including any amendments thereto that exceed $100,000 in sales with respect to any customer, or commissions paid with respect to any Referral Partner, for the 12-month period ending on September 30, 2012;
(xx) with respect to any supplier required to be listed specified in Section 4.25(b) of the Company Disclosure Schedule, all Contracts with such suppliers where costs of goods or services purchased are over $200,000 for the 12-month period ending on Schedule 5.22; September 30, 2012;
(xviixxi) material any Contract to which any Related Person, or any of their immediate family members, is a party or has an interest in, whether directly or indirectly, other than employment, compensation and benefit arrangements for services as an officer or employee thereof (each, a “Related Person Contract”);
(xxii) any Contracts that purport to bind third-parties who were not Affiliates of the Company or its Subsidiaries on the original date of such Contract, but that become Affiliates after the date of such Contract;
(xxiii) any Contract relating to the marketing or advertising of any products or services of the Company or its Subsidiaries in an amount exceeding $100,000 individually;
(xxiv) any Contract that is or would be required to be filed by the Company as a “Material Contract” with a Governmental Body; (xviii) Contracts the SEC pursuant to which Item 601(b)(iv) of Regulation S-K or disclosed by the Company in a Current Report on Form 8-K; and
(xxv) commits the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or enter into any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationsforegoing.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Sources: Merger Agreement (Telanetix,Inc)
Contracts and Commitments. (a) Neither Section 3.12(a) of the Company nor Disclosure Schedule sets forth a complete and accurate list of each of the following Contracts which are in effect on the Effective Date (including any series of its Subsidiaries are Contracts under a party to any: master agreement) (the “Material Contracts”):
(i) Contract containing Contracts that are not terminable by the Company on fewer than sixty (60) days’ notice without payment by or penalty, liability or other adverse consequence to the Company;
(ii) Contracts that involve payments based on sharing profits or revenues of the Company or that create a partnership, joint venture or an alliance, referral or reseller relationship;
(iii) Contracts that are required to be set forth on Section 3.20(b) of the Company Disclosure Schedule;
(iv) Contracts that involve a payment commitment of the exceeding US$ 50,000 individually or $100,000 in the aggregate;
(v) Contracts that pertain to projects commonly known as “fixed price/deliverable based projects” as to which the Company has not completed performance in any respect;
(vi) Contracts that relate to capital expenditures exceeding US$ 50,000 individually to be made after the date of this Agreement;
(vii) Contracts that (A) impose a Lien on any of the Company’s assets; (B) create, incur or guarantee any Indebtedness of the Company to any other Person, or (C) assume, or otherwise become liable for, the obligations of any other Person;
(viii) Contracts that relate to the disposition or acquisition of material assets or any interest in any business enterprise (including any Liability related to or arising out of any acquisition or other business combination such as any earn-out, performance, bonus or other contingent payment arrangement, however such arrangement may be evidenced);
(ix) Outbound Intellectual Property Contracts that are required to be set forth on Section 3.13(e) of the Company Disclosure Schedule (except for Outbound Intellectual Property Contracts entered in the ordinary course of business);
(x) Contracts with Company Employees granting any bonus, special severance benefits, change of control benefits, or special termination pay (in cash or equity or otherwise) to any Employee with respect to which the Company has or may have any liability or obligation, in each case, except as required under applicable law, or Contracts with any labor union, works council or similar organization;
(xi) Contracts that are non-disclosure agreements, other than those entered into with any actual or prospective customer, reseller, distributor, partner, contractor, prospective employee or vendor in the Ordinary Course or those entered into with Company Employees or consultants in such capacity;
(xii) Contracts that (A) include any non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants covenant or otherwise containing covenants similar arrangement that purport to restrict limits the Company’s or any of its Subsidiaries’ business activity or limit the freedom right of the Company or any of its Subsidiaries to engage in, or to compete (geographically or otherwise) in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another other Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses anywhere in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions world or (B) any grant exclusive rights, rights of first refusal, rights of first negotiation any type or other similar rights; scope;
(vixiii) collective bargaining agreement Contracts that provide for indemnification by or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xiiexcluding indemnification for third party infringement claims caused by a Company Product that is contained in the Company’s Contract(s) guaranty of any obligation for borrowed money with customers, service providers or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders Person entered into in the ordinary course of businessbusiness consistent with past practice);
(xiv) Contracts that involve an option to purchase, a right of first refusal or other potential right to acquire any interest or any Securities of any Person (including the Company);
(xv) Contracts that contain “most favored nation” provisions or any similar preferred pricing provision requiring that a third party be offered terms or concessions at least as favorable as those offered to one or more other parties;
(xvi) Contracts with (A) any supplier required to be listed on Schedule 5.22Governmental Authority; or (B) any party who is a subcontractor of any Governmental Authority in connection with such Contract;
(xvii) material Contract with a Governmental Body; Contracts that relate to the settlement of any Proceeding;
(xviii) Contracts pursuant to with suppliers of the Company with a value exceeding $50,000 individually;
(xix) Contracts establishing powers of attorney or agency agreements, other than those entered into with option holders under the Plan in the Ordinary Course;
(xx) Contracts under which the Company has any obligations to create or maintain interoperability or compatibility of any of its Subsidiaries grants to the Company’s technology, products or services with any technology, products or services of any other Person;
(xxi) Contracts that have a third party, or a third party grants to restriction on assignment on the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course event of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance a change of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationscontrol.
(b) Prior to the date of this Agreement, the Company has delivered or made available to Purchaser a true, correct and complete copy of each Material Contract, including all amendments, modifications and supplements thereto through the date of this Agreement (or a written description of the material terms of any Material Contract that is not written).
(c) Each Material Contract is a valid, binding and enforceable obligation of the Company in accordance with its terms against the Company and, to the Knowledge of the Company, against each other party thereto (in each case, subject to General Enforceability Exceptions), and is in full force and effect, and .
(d) There is a legal, valid and binding obligation no existing default by the Company under any of the Company or a Subsidiary of the Company which is party thereto, andMaterial Contracts and no event has occurred or, to the knowledge Knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company that (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, whether with or without the notice, lapse of time or the giving happening or occurrence of notice or both, any other event) would constitute a material breach or material default of by the Company or subject the Company to any Subsidiary penalty or liquidated damages, under any Material Contract.
(e) The Company has not received any notice or other written or oral communication from any Person regarding (A) any actual or alleged breach of, default under or failure to comply with any term or requirement of any Material Contract; or (B) any actual or proposed revocation, withdrawal, suspension, cancellation, termination or amendment to any Material Contract.
(f) The Company has not received notice of and, to the Knowledge of the Company, or permit there are no existing defaults by any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No other Person party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any a Material Contract. Neither ; and, to the Company, nor any Subsidiary Knowledge of the Company, no event has delivered notice occurred or to Company’s Knowledge is likely to occur, or contacted that, with or without notice, lapse of time or the happening or occurrence of any counterparty to other event, would constitute a default under any Material Contract requesting an amendment to such contract regarding by any other Person party thereto (other than the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writingCompany), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Neither Except as set forth in Section 3.19 of the Company Schedule or as filed prior to the date hereof as an exhibit to any Company Documents, neither Company nor any of its Subsidiaries are is a party to any: or is bound by:
(a) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(b) any agreement, contract or commitment (i) Contract containing non-competition or non-solicitation (excluding such covenants contained any covenant limiting in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict any respect the Company’s or any right of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries or, upon consummation of the Arrangement, Parent and its Subsidiaries, to engage in any line of business or to compete with any Person; Person or (ii) Contract under which granting any exclusive distribution rights;
(c) any agreement, contract or commitment currently in force relating to the disposition or acquisition by Company or any of the Company or its Subsidiaries has made advances or loans to another Person in excess after the date of one hundred thousand dollars $100,000, this Agreement of a material amount of assets (other than to inter-company loans the sale or advances to any employee purchase of goods or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses services in the ordinary course of business; (iii) Contracts relating or pursuant to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the which Company or any of its Subsidiaries (A) most favored pricing provisions or (B) has any exclusive rightsownership interest in any corporation, rights of first refusalpartnership, rights of first negotiation joint venture or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, business enterprise other than as set forth Company's Subsidiaries, in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchaseeach case, stock option or similar plan; (ix) Contract for the employment with a value exceeding $150,000 of which would subject Company to any individual on a full-time or consulting basis (A) providing for base compensation liability in excess of one hundred thousand dollars $150,000;
($100,000d) per annumany mortgages, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company indentures, guarantees, loans or its Subsidiaries; (x) Contract providing for payments to any employeecredit agreements, officer, director, consultant security agreements or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement other material agreements or indenture instruments relating to the borrowing of money or to mortgagingextension of credit in excess of $150,000, pledging except for trade payables incurred in the ordinary course of business;
(e) any other agreement, contract or otherwise placing commitment that has a Lien commitment of $150,000 or more individually by Company or its Subsidiaries (other than a Permitted Lienwith respect to the sale or purchase of goods or services in the ordinary course of business) or extends beyond ninety (90) days and cannot be terminated without penalty upon notice of thirty (30) days or less;
(f) any contract relating to the borrowing of money, the guaranty of another Person's borrowing of money, or the creation of an encumbrance or lien on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments Subsidiaries and with outstanding obligations in excess of three hundred and fifty thousand dollars $150,000; or
($350,000g) in the aggregate; (xvi) other than purchase orders any agreement of indemnification or guaranty by Company or any of its Subsidiaries not entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the business other than indemnification agreements between Company or any of its Subsidiaries grants to and any of its officers or directors in standard forms as filed by Company with the SEC. Except for breaches, violations or defaults that would not, individually or in the aggregate, have a third partyMaterial Adverse Effect on Company, or a third party grants to the neither Company or nor any of its Subsidiaries, nor to Company's Knowledge any other party to a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars Company Contract ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuringas defined below), Contracts relating to is in breach, violation or default under, and neither Company nor any of its Subsidiaries has received written notice that it has breached, violated or defaulted under, any of the acquisition material terms or disposition (whether by merger, sale of equity, sale of assets or otherwise) conditions of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant agreements, contracts or commitments to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of party or by which it is bound that are required to be disclosed in the Company Schedule (any such agreement, contract or commitment, a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them "COMPANY CONTRACT") in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (such a manner as applicable) is in material default under any Material Contract, no party thereto has given to would permit any other party thereto notice alleging that to cancel or terminate any such a material breach Company Contract, or material default has occurred, and, to the knowledge of the Company, the would permit any other party to each of the Material Contracts is not in seek material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 damages or other force majeure eventsremedies (for any or all of such breaches, violations or defaults, in the aggregate). The Company has made available to the Purchaser Parent true and correct copies (including all amendments) of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoCompany Contract.
Appears in 1 contract
Sources: Combination Agreement (Divine Inc)
Contracts and Commitments. (a) Neither Schedule 2.14 sets forth a complete and accurate list of all ------------- contracts known to the Company nor and the Stockholders after reasonable investigation which have been entered into by the Company or any Stockholder relating to the Practice and still in effect as of its Subsidiaries are a party to any: the date hereof (the "Contracts"), of the following categories:
(i) Contract containing non-competition Managed care contracts and other contracts with third- party payors;
(ii) Employment or non-solicitation similar contracts and severance agreements;
(excluding such covenants contained iii) Contracts (other than Leases set forth on Schedule -------- 2.13) relating to the Company or the Practice which are not cancelable without ---- liability on thirty (30) calendar days (or less) notice;
(iv) Options with respect to any property, real or personal, whether the Company is the grantor or grantee thereunder;
(v) Contracts involving expenditures or liabilities, actual or potential, in customary non-disclosure agreementsexcess of one thousand dollars ($1,000) covenants or otherwise material to the Practice or the Company;
(vi) Promissory notes, loans, agreements, indentures, evidences of indebtedness, letters of credit, guarantees, or other instruments relating to an obligation to pay money, individually in excess of or in the aggregate in excess of one thousand dollars ($1,000), whether the Company shall be the borrower, lender or guarantor thereunder or whereby any properties of the Company are pledged;
(vii) Contracts containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit limiting the freedom of the Company or any officer, director, employee, or stockholder of its Subsidiaries the Company, to engage in any line of business or to compete with any Personperson; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; and
(viii) stock purchaseAny Contract with the United States, stock option state or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company local government or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money agency or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure eventsdepartment thereof. The Company has made available to PQC true, correct and complete copies within the Purchaser true and correct copies of each Material Contract (Company's or a written description Stockholder's possession of, and all records relating to, all of each such Material Contract that is not writing)the Contracts listed on Schedule 2.14, together with including all amendments, modifications or amendments and ------------- supplements thereto.
(b) Absence of Breaches or Defaults. To the knowledge of the ------------------------------- Company or any Stockholder, all of the Contracts are valid and in full force and effect. The Company and the Stockholders have duly performed all of its or their obligations under the Contracts, and no violation of, or default or breach, under any Contracts by the Company or any other party has occurred except for any violations, defaults, or breaches that would not have a Material Adverse Effect and neither Company nor any other party, to the best of Company's or any Stockholder's knowledge after due inquiry, has repudiated any provisions thereof.
Appears in 1 contract
Contracts and Commitments. (a) Neither Schedule 3.13(a) sets forth a complete and accurate list of all Material Contracts (as hereinafter defined) as of the Company nor any date hereof. For purposes of its Subsidiaries are a party to any: this Agreement, “Material Contracts” means (i) Contract containing non-competition all agreements (whether written or non-solicitation verbal) (excluding other than purchase orders that do not materially amend the terms of such covenants contained in customary non-disclosure agreements on an ongoing basis) with the (1) largest sixteen (16) customers of the Company and its Subsidiaries, taken as a whole (by dollar volume of sales), during the years ended December 31, 2020 and December 31, 2021 (the “Major Customers”) and (2) the largest ten (10) suppliers of the Company and its Subsidiaries, taken as a whole (by dollar volume of purchases), during the years ended December 31, 2020 and December 31, 2021 (the “Major Suppliers”); (ii) all joint venture agreements, partnership agreements, strategic alliance or similar contract or any agreement involving a sharing of profits, revenues, losses, costs or liabilities with any person; (iii) covenants any agreements granting to any person a right of first refusal, or otherwise containing covenants that purport similar right or option to restrict purchase or acquire any assets or business of the Company’s Company or any of its Subsidiaries’ ; (iv) any agreements entered into by the Company or any of its Subsidiaries within three (3) years prior to the date hereof for the acquisition or disposition (whether by merger, sale of stock, sale of assets or otherwise) of any person, business activity or limit material assets that contain continuing payment obligations of the freedom Company or any of its Subsidiaries; (v) any agreements executed with Affiliates, (vi) agreements executed with any Governmental Authority, (vii) collective bargaining agreements or agreements with any labor organization, union or association; (viii) bonus, pension, profit-sharing, retirement or other form of deferred compensation plan; (ix) any contract for the employment of any officer, individual employee or other person on a full-time or consulting basis providing (a) for base compensation in excess of $150,000, (b) a payment, benefit or accelerated vesting plan upon the execution of this Agreement or the transactions contemplated by this Agreement, or (c) for payment upon the severance of any officer, individual employee, or other person on a full-time, part-time, consulting or other basis; (x) agreements which provide for, or relate to, the incurrence by the Company or any of its Subsidiaries of indebtedness for borrowed money, and Capital Leases of the Company or any of its Subsidiaries with respect to an aggregate amount greater than $250,000, (xi) all mortgages, pledges and guarantees of indebtedness of persons other than the Company or its Subsidiaries, (xii) all agreements that limit, or would reasonably be expected to limit, the ability of the Company or any of its Subsidiaries to engage in any line of business or to compete with in any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person business in excess of one hundred thousand dollars $100,000a geographic area, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgagingsolicit, pledging or otherwise placing a Lien (other than a Permitted Lien) on solicit the business of, any portion of the assets of the Company or person and/or to hire any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guarantyperson; (xiii) lease agreements that grant any person exclusivity rights or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000)contain a “most favored nations” provision; (xiv) lease any contract that relates to the retention by the Company of any broker or agreement under which it is lessor of other sales agent, distributor or permits any third-party to hold representative or operate any property, real advertising or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring marketing entity or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to through which the Company or any of its Subsidiaries grants to is appointed or authorized as a third partysales agent, distributor or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its termsrepresentative, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given involving payments to any other party thereto notice alleging that such a material breach or material default has occurred, and, person in excess to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or $50,000; and (xv) any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoIP Licenses.
Appears in 1 contract
Sources: Stock Purchase Agreement (Alj Regional Holdings Inc)
Contracts and Commitments. (a) Neither Except as set forth in SCHEDULE 2.8, the Company nor any of its Subsidiaries are a party to any: has no (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure collective bargaining agreements) covenants or otherwise containing covenants that purport to restrict the Company’s , or any agreements or policies that contain or include any severance pay liabilities or obligations; (ii) employment, consulting or similar agreement, contract or commitment that involves more than $25,000 on an annual basis and which is not terminable without penalty or cost by the Company on notice of its Subsidiaries’ business activity thirty (30) days; (iii) lease of real or limit personal property having a term in excess of one year or remaining payments of $25,000 or more (as lessor or lessee); (iv) note or other evidence of indebtedness for borrowed money, or the deferred purchase price of property or services which deferral involves a liability of more than $25,000 on an annual basis; (v) agreement of guaranty or indemnification (provided that this clause (v) shall not require a separate identification of purchase orders and form contracts that would not otherwise be listed and which include a provision for indemnity against breaches or violations); (vi) agreement, contract or commitment limiting the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (iivii) Contract under which any of the Company agreement, contract or its Subsidiaries has made advances or loans commitment relating to another Person capital expenditures in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto25,000; (viii) stock purchaseagreement, stock option contract or similar plancommitment relating to the acquisition of assets of, or any interest in, any business enterprise involving individual or aggregate payments in excess of $25,000; (ix) Contract for the employment other agreement, contract or commitment (with customers or other Persons) (or negotiation of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (Bthe foregoing) which involves $25,000 or more and is not terminable with less than 30 cancelable without penalty or cost within sixty (60) days’ notice and without any liability to the Company , except for sales orders or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of businessbusiness consistent with past practices or (x) any agreement, any Contracts with any supplier contract or commitment that involves more than $25,000 and which represents or requires the Company to be a minority-owned business enterprise or a woman-owned business enterprise. The Company has delivered copies of all documents required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant SCHEDULE 2.8 to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationsBuyer.
(b) Each Material Except as set forth in SCHEDULE 2.8: (i) the Company is not in violation of, nor has the Company received any written notice of a claim that it has breached, any of the terms or conditions of any agreement, contract or commitment set forth or required to be set forth in any of the Schedules to this Agreement (collectively the "Contracts") in such manner as would permit any other party thereto to cancel or terminate the Contract as a result of such breach, if any such breach or breaches singly or in the aggregate is reasonably likely to have a material adverse effect on Buyer or the Real Property or the Personal Property; (ii) each Contract is in full force and effect, effect in all material respects in the form delivered to Buyer and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium Company and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) Sellers there is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurredby any party thereto; and (iii) there are no facts or conditions which have occurred or are, andbased on facts presently known by Sellers to exist, to anticipated which, through the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse passage of time or the giving of notice notice, or both, would constitute a material breach default under any Contract giving rise to a right to cancel or material default a claim for damages in excess of $25,000 or would cause the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect party thereto or the creation of an Encumbrance which is reasonably likely to materially limit the use, modification or sale of any Material Contract. Neither the Company, nor any Subsidiary asset of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretovalued at more than $50,000.
Appears in 1 contract
Sources: Purchase Agreement (Outsourcing Services Group Inc)
Contracts and Commitments. (a) Neither Section 4.10 of the Disclosure Schedule contains a true, correct and complete list of all of the following Contracts (other than Employee Benefit Plans listed on Section 4.18(a) of the Disclosure Schedule) to which any member of the Company nor any of its Subsidiaries are Group is a party to any: or is bound by as of the date of this Agreement (collectively, the “Material Contracts”):
(i) Contract containing non-competition Contracts with any customer of the Company Group which involve consideration in excess of $500,000 per year;
(ii) Vendors paid more than $250,000 in 2019 by any member of the Company Group;
(iii) all Company Group IP Agreements, except for any Standard IP Licenses;
(iv) Contracts (A) related to Indebtedness of the Company Group, other than related to trade payables, or non-solicitation (excluding such covenants contained B) granting any Person an Encumbrance on any asset of the Company, other than Permitted Encumbrances;
(v) Contracts pursuant to which the Company has, directly or indirectly, made any advances, loans, extension of credit or capital contributions, other than in customary non-disclosure agreementsthe ordinary course of business consistent with past practice to vendors or employees;
(vi) covenants Contracts that are joint venture, partnership or otherwise other similar agreements (however named);
(vii) Contracts limiting the ability of the Company Group to freely engage in their businesses, or containing covenants that limit, or purport to restrict limit, the Company’s or any of its Subsidiaries’ business activity or limit the freedom ability of the Company or any of its Subsidiaries Group, to (A) engage in any line of business or to compete with any PersonPerson in any geographic area; (B) sell, supply, provide, develop, deliver or distribute any service or product; (C) hire or solicit Persons for employment or engagement as an independent contractor; or (D) develop, exploit, use or enforce any Intellectual Property Rights, including in each case any settlement, coexistence or standstill agreements;
(viii) Contracts (i) providing for the Company Group to be the exclusive provider of any product or service to any other Person or that otherwise involve the granting by any other Person to the Company of exclusive rights of any kind; (ii) Contract under which providing for any other Person to be the exclusive provider of any product or service to the Company Group or its Subsidiaries has made advances or loans to another Person in excess that otherwise involves the granting by the Company Group of one hundred thousand dollars $100,000, other than to inter-company loans or advances exclusive rights to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of businessPerson; (iii) Contracts relating granting to Indebtednessany other Person a right of first refusal or right of first offer on the sale or license of any asset, property or part of the business of the Company Group; and (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants containing a provision of the type commonly referred to as a “most favored nation” provision for the benefit of any Person other than members of the Company Group;
(ix) Contracts that provide for change in control, severance or retention payments or benefits to any of its Subsidiaries employee, director or individual consultant;
(A) most favored pricing provisions or (Bx) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees labor union, works council or similar organization relating to wages, hours and other conditions employees of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; Group;
(xi) agreement Contracts that on their face purport to bind or indenture relating to the borrowing of money restrict in a material way, or to mortgagingbe enforceable against with respect to any material liability or obligation, pledging or otherwise placing a Lien any Affiliate of the Company (other than the Company’s Subsidiaries) or that would pursuant to its terms bind or restrict in a Permitted Lien) on material way, or be enforceable against with respect to any portion of the assets of the Company material liability or obligation, Parent or any of its Affiliates (other than the Company or the Company’s Subsidiaries; ) after the Closing;
(xii) guaranty Contracts between a member of any obligation for borrowed money or the Company Group, on the one hand, and a Related Person, on the other material guaranty; hand;
(xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); Leases;
(xiv) lease Contracts relating to any acquisition of any business or agreement under Person by merger, consolidation, stock or asset purchase or any other means (A) which it acquisition is lessor of pending or permits was completed during the prior three years or (B) that have any third-party to hold ongoing indemnification, earnout, deferred purchase price or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); other contingent payment obligations;
(xv) Contracts requiring that are for the settlement of any Action and (A) obligate the Company to make payments (or providing for a series of payments) of $250,000 or more in the aggregate which have not been made or involve any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars equitable relief; ($350,000B) in connection therewith, the aggregateCompany has admitted fault or culpability; or (C) which have not been fully performed; and
(xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationsAuthority.
(b) Each True, correct and complete copies of all Material Contracts, together with all amendments, waivers, or other changes thereto, have been made available to Parent. Other than any Material Contract terminated subsequent to the date of this Agreement in accordance with its terms, each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party theretoGroup, and, to the knowledge Knowledge of the Company, of the other parties thereto thereto, enforceable against each of them in accordance with its terms, in each case, subject to except as the same may be limited by (i) bankruptcy, insolvency, reorganizationmoratorium, moratorium reorganization and other similar Laws relating to or laws affecting creditors’ rights or to generally and (ii) the general principles of equity, regardless of whether asserted in a proceeding in equity or at law. Neither To the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge Knowledge of the Company, the Company Group has complied in all material respects with each Material Contract. There are no material breaches or defaults by the Company Group under any Material Contract or, to the Knowledge of the Company, by any other party to each of the Material Contracts is not in material default or material breach thereunder. No thereto, and no event has occurred which wouldwhich, with or without the lapse passage of time or time, the giving of notice or both, would constitute a material breach or material default of by the Company or Group under any Subsidiary Material Contract or, to the Knowledge of the Company, or permit by any early termination, modification, acceleration or cancellation of, or otherwise adversely affect other party thereto.
(c) All payment obligations and all other material obligations of the Company’s or any of its Subsidiaries’ rights or obligations under, any Company Group under each Material Contract required to be performed or of any material right or obligation thereunder. No party fulfilled (including payments to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contractall third parties or otherwise) have been fully performed or fulfilled. Neither To the Company, nor any Subsidiary Knowledge of the Company, has delivered notice all material payment obligations and all other material obligations under each Material Contract required to be performed or contacted any counterparty fulfilled (including payments to any Material Contract requesting an amendment and all third parties or otherwise) by each counterparty thereto have been fully performed or fulfilled by such counterparty thereto. As of the date of this Agreement, the Company Group has not received any written, or to such contract regarding the inability Knowledge of the Company or oral, notice from a counterparty to a Material Contract alleging a breach of any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 payment or other force majeure events. The obligation, and the Company Group has made available to the Purchaser true and correct copies of each not given any such notice under any Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoContract.
Appears in 1 contract
Contracts and Commitments. (a) Neither Except as set forth on Section 3.16(a) of the Disclosure Schedules, the Company is not a party to or bound by, nor are any of its Subsidiaries are assets or properties bound by, any outstanding (in each case, whether written or oral) (each, a party to any: “Contract” and collectively, the “Contracts” and together with the Leases, Company IP Agreements, the “Material Contracts”):
(i) Contract containing non-competition or non-solicitation contract (excluding such covenants contained in customary non-disclosure agreementseach a “Company Employee Agreement”) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment or engagement of any individual officer, employee, or other natural person on a fullfull time, part-time time, consulting, independent contractor or consulting other basis (A) providing that provides for annual base compensation in excess of one hundred thousand dollars ($100,000) per annumCAD$50,000 or cannot be terminated by the Company at will, and or (B) which is not terminable with less than 30 days’ notice and without providing severance or other termination payments, loans or change of control benefits to current officers, directors, employees or Affiliates;
(ii) obligation for Indebtedness; or any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to the mortgaging, pledging pledging, guaranteeing or otherwise placing a Lien (other than a Permitted Lien) on any portion asset or group of the assets of the Company or any of its Subsidiaries; Company;
(xiiiii) guaranty of any obligation for borrowed money partnership, joint venture, collaboration, joint marketing, equityholders’ or other material guaranty; similar contract with any Person;
(xiiiiv) lease lease, sublease, license or other similar agreement under which it is lessee or lessor of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-third party to hold or operate operate, any property, real or personal, except for the Leases and except for any lease of personal property under which the annual aggregate rental exceeds one hundred thousand dollars payments do not exceed $50,000;
($100,000); v) Company IP Agreements;
(xvvi) Contracts requiring contract or providing for any capital expenditure that requires annual future payments in excess group of three hundred and fifty thousand dollars related contracts ($350,000) in the aggregate; (xvi) other than excluding purchase orders entered into in the ordinary course Ordinary Course of business, Business) for the purchase or sale of products or services (or a commitment or expected delivery with respect to the same);
(vii) contract or group of related contracts involving the payment or potential payment by or to the Company of more than $50,000 during any Contracts 12-month period (excluding Company Employee Agreements and purchase orders entered into in the Ordinary Course of Business);
(viii) contract with any supplier required Person containing any provision or covenant prohibiting or limiting the ability of the Company to be listed on Schedule 5.22; (xvii) material Contract engage in any business activity or compete with a Governmental Body; (xviii) Contracts pursuant any Person or prohibiting or limiting the ability of any Person to which compete with the Company or any prohibiting or limiting disclosure of its Subsidiaries grants to confidential or proprietary information;
(ix) contract that contains a third party, “most favored nation” or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars similar provision;
($50,000x) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts contract relating to the acquisition or disposition of any business (whether by merger, sale of equityshares, sale of assets or otherwise) within the last 5 years;
(xi) power of attorney or other similar agreement or grant of agency;
(xii) profit sharing, share option, share purchase, share appreciation, deferred compensation, severance or other similar plan or arrangement for the benefit of its current or former directors, managers, shareholders, option holders, officers or employees;
(xiii) collective bargaining agreement or other contract to or with any Person labour union or line of business entered into since the Original Acquisition Date other labor organization;
(and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xxxiv) any settlement contract with a Material Customer or Material Supplier; or
(xv) settlement, conciliation or similar agreement with any third party Governmental Authority or present or former employee, officer, director or manager of that will require the Company pursuant to which pay consideration after the Company or any date of its Subsidiaries has material ongoing obligationsthis Agreement in excess of $25,000.
(b) Each Material Contract agreement, lease, contract, commitment or other arrangement set forth or required to be set forth on Section 3.16(a) of the Disclosure Schedules is in full force and effect, effect and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to (except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and or similar Laws relating to or affecting creditors’ rights or to generally and by general principles equitable principles). Except as specifically set forth on Section 3.16(b) of equity. Neither the Disclosure Schedules, the Company nor has performed all obligations required to be performed by it and is not, and to the Company’s Knowledge no other Party is, in default under or in breach of or in receipt of any Subsidiary claim of default or breach under any agreement, lease, contract, commitment or other arrangement set forth or required to be set forth on Section 3.16(a) of the Company (as applicable) is in material default under any Material Contract, Disclosure Schedules; and no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to event outside the knowledge Ordinary Course of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event Business has occurred which would, with or without the lapse passage of time or the giving of notice or bothboth reasonably could result in a default, constitute a material breach or material default event of the Company or noncompliance under any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure eventsagreement. The Company has made available to the Purchaser true provided Acquiror with a correct and correct copies complete copy of each Material Contract (contract set forth or a written description required to be set forth on Section 3.16(a) of each such Material Contract that is not writing)the Disclosure Schedules, together with all amendments, modifications waivers or supplements other changes thereto.
Appears in 1 contract
Sources: Contribution Agreement (Cybin Inc.)
Contracts and Commitments. Licenses and Permits. Schedule ---------------------------------------------- 3.11(a) through (ak) Neither to the Company nor any Disclosure Letter sets forth a list of its Subsidiaries are each of the following written or oral contracts, agreements, leases, licenses, permits, assignments, mortgages, transactions, obligations, binding commitments or other instruments to which Company is a party or to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the which Company or any of its Subsidiaries assets or properties is bound:
(a) any contract or agreement providing for payments (whether fixed, contingent or otherwise) by or to engage Company in an aggregate amount of $20,000 or more;
(b) any contract providing for the development of any software, content (including textual content and visual, photographic or graphics content), technology or intellectual property for (or for the benefit or use of) Company, or providing for the purchase or license of any software, content (including textual content and visual or graphics content), technology or intellectual property to (or for the benefit or use of) Company, which software, content, technology or intellectual property is in any manner used or incorporated (or is contemplated by Company to be used or incorporated) in connection with any aspect or element of any product, service or technology of Company (other than software generally available to the public at a per copy license fee of less than $500 per copy);
(c) any joint venture or partnership contract or other agreement which has involved, or is reasonably expected to involve, a sharing of profits, expenses or losses with any other party;
(d) any contract or commitment for or relating to the employment of any officer, employee or consultant of Company or any other type of contract or understanding with any officer, employee or consultant of Company that is not immediately terminable by Company without cost or other liability;
(e) any indenture, mortgage, trust deed, promissory note, loan agreement, security agreement, guarantee or other agreement or commitment for the borrowing of money or extension of a line of credit or for a leasing transaction of a type required to be capitalized in accordance with Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board;
(f) any lease or other agreement under which Company is lessee of or holds or operates any items of tangible personal property or real property owned by any third party;
(g) any agreement that restricts Company from engaging in any aspect of its business; from participating or competing in any line of business or to compete with market; from freely setting prices for Company's products, services or technologies (including, but not limited to, most favored customer pricing provisions); from engaging in any Personbusiness in any market or geographic area; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000from soliciting potential employees, other than to inter-company loans or advances to any employee or director in connection with travelconsultants, entertainment and related business expenses contractors or other customary out-of-pocket expenses suppliers or customers;
(h) any Company IP Rights Agreement (as defined in the ordinary course of business; Section 3.13);
(iiii) Contracts any agreement relating to Indebtedness; (iv) joint venturethe sale, partnershipissuance, strategic alliance grant, exercise, award, purchase, repurchase or similar agreements redemption of any shares of capital stock or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the securities of Company or any options, warrants or other rights to purchase or otherwise acquire any such shares of its Subsidiaries capital stock, other securities or options, warrants or other rights therefor, except for those agreements conforming to the standard agreement under the Company Plan;
(A) most favored pricing provisions or (Bj) any exclusive rights, rights contract with or commitment to any labor union; and
(k) any Governmental Permit. A true and complete copy of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining each agreement or Contract with any other employee representative document required by these subsections (a) through (j) of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in this Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants 3.11 to the Company or any Disclosure Letter (such agreements and documents being hereinafter collectively referred to as the "Company Material Agreements") and a copy of its Subsidiaries, a license each Governmental Permit required by subsection (k) of this Section to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating be listed on Schedule 3.11 to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant Disclosure Letter has been delivered to which the Company or any of its Subsidiaries has material ongoing obligationsParent's legal counsel.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Sources: Merger Agreement (Interwoven Inc)
Contracts and Commitments. Except as set forth in Schedule 3.18, the Acquired Companies are not a party to:
(a) Neither any partnership agreements or joint venture agreements which require a payment, or delivery of assets or services beyond the 2018/2019 ski season and which are not terminable by the applicable Company nor on 30 days or less written notice without penalty to the applicable Acquired Company, or which contain exclusivity arrangements which will be binding upon the Affiliates of the applicable Acquired Company following the Closing;
(b) any agreement pursuant to which the applicable Acquired Company would be required to pay severance to any director, officer, employee or consultant;
(c) any material agreement with another person or entity limiting or restricting the ability of the applicable Acquired Company to enter into or engage in any market or line of business;
(d) any material brokerage agreements;
(e) any agreements for the sale of any of the assets of the applicable Acquired Company other than in the Ordinary Course of Business or for the grant to any person or entity of any preferential rights to purchase any of its Subsidiaries are a party assets;
(f) any agreement relating to any: the acquisition by the applicable Company of any operating business or the assets or capital stock of any other corporation, entity or business entered into during the last twelve (12) months;
(g) any material agreements relating to the incurrence, assumption, surety or guarantee of any indebtedness;
(h) any material agreements, other than agreements granting rights to use readily available commercial Software and having an acquisition price of less than $50,000 in the aggregate for all such agreements and agreements allowing the use of the Acquired Company trademarks, trade names or other marks or names in connection with promotional activities (i) Contract containing non-competition granting or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants obtaining any right to use any Intellectual Property or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract restricting the rights of the applicable Acquired Company, or permitting other Persons, to use or register any Intellectual Property of the applicable Acquired Company;
(i) any material agreements under which any of the applicable Acquired Company or its Subsidiaries has made advances or loans to any entity or individual not including advances made to an employee of the applicable Acquired Company in the Ordinary Course of Business consistent with past practice;
(j) any agreement pursuant to which both an Acquired Company and any Affiliate (except for another Person Acquired Company) are jointly and severally liable for breach of such agreement by such Affiliate; or
(k) except for agreements described in Schedule 3.18(k), any other agreement, including group of related agreements, the performance of which presently requires aggregate payments be made to or from the Acquired Companies in excess of one hundred thousand dollars $100,000, other than 100,000 per year. Each of the contracts to inter-company loans or advances to which any employee or director in connection with travel, entertainment Acquired Company is a party and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed set forth on Schedule 5.22; 3.18 (xvii) material Contract with the “Material Contracts”), a Governmental Body; (xviii) Contracts pursuant true and complete copy of each of which has been delivered or made available to which the Company or any of its Subsidiaries grants to a third party, or a third party grants Buyer prior to the Company or any of its Subsidiariesdate hereof, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, effect and is a the legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the applicable Acquired Company, of the other parties thereto enforceable against each of them it in accordance with its terms, in each case, subject to bankruptcythe Enforceability Exceptions. With respect to each Material Contract, insolvencyneither the applicable Acquired Company nor, reorganizationto the Knowledge of Sellers, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) other party, is in material breach of violation of, or default under under, any such Material Contract, Contract and no party thereto has given to any other party thereto notice alleging that such a material breach or material default event has occurred, andis pending or, to the knowledge Knowledge of the CompanySellers, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which wouldthreatened, with or without the lapse of time or which, after the giving of notice notice, with lapse of time, or bothotherwise, would constitute a material breach or material default by the applicable Acquired Company or, to the Knowledge of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations underSellers, any Material Contract or of any material right or obligation thereunder. No other party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any under such Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Neither Schedule 3.14 sets forth a true, complete and correct list (including all amendments, modifications or supplements with respect thereto) of the following agreements (written or oral) to which the Company nor or any of its Subsidiaries are Subsidiary is a party to any: the extent any such agreement (i) Contract containing non-competition is currently in effect or non-solicitation (excluding ii) has been terminated on or prior to the date hereof but contains provisions that survived such covenants contained termination and such provisions are currently in customary non-disclosure effect (other than provisions that customarily survive such termination and do not relate to the principal business purpose of such agreement and which do not create any material or ongoing financial or other liability to the Buyer):
(i) any loan agreement, note, mortgage, indenture, security agreement and other agreement and instrument relating to the borrowing of money;
(ii) any agreement (or group of related agreements) covenants or otherwise containing covenants that purport to restrict between the Company’s Company or any Subsidiary and any Top Customer;
(iii) any agreement concerning the establishment or operation of its Subsidiaries’ business activity a partnership, joint venture or limit limited liability company;
(iv) any agreement (or group of related agreements) under which the freedom Company or any Subsidiary has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $10,000 or under which it has imposed (or may impose) an Encumbrance (other than Permitted Liens) on any of the assets, tangible or intangible, of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; Subsidiary;
(v) Contract (other than Franchise Agreements) that grants to any Person other than agreement for the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative disposition of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any material portion of the assets of the Company or any Subsidiary (other than sales in the ordinary course of business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases in the ordinary course of business);
(vi) any agreement concerning non-competition, exclusivity, non-solicitation, non-recruitment or other such covenants that restricts any conduct of any business by the Company or any Subsidiary, in each case with respect to geographical area of operations or scope or type of business of the Company or any Subsidiary, other than (A) non-competition agreements entered into between the Company or any Subsidiary and its Subsidiaries; employees or consultants and which do not restrict the Company or any Subsidiary with respect to non-competition or (B) customer contracts and non-disclosure agreements with standard non-solicitation of employee provisions;
(vii) any employment or consulting agreement (other than offer letters for at-will employment for employees that do not provide for any severance benefit upon such employee’s termination);
(viii) any collective bargaining or similar agreement;
(ix) any agreement involving any current officer, employee, director or shareholder of the Company or any Subsidiary or consulting agreement with an individual involving payments by the Company or any Subsidiary in excess of $50,000 per annum other than agreements entered into in connection with the issuance and exercise of options;
(x) any barter agreement;
(xi) any derivative contract and other hedging arrangement;
(xii) guaranty any operating lease (as defined by GAAP) requiring payments of greater than $10,000 in any obligation for borrowed money or other material guaranty; year;
(xiii) lease any agreement or agreement under which it is lessee ofarrangement for the provision of bandwidth, relating to operating systems or holds with respect to the acquisition or operates any personal property owned by any other partyleasing of hardware, for which the annual rental exceeds one hundred thousand dollars ($100,000)including agreements with Level 3 Communications Inc. and Dell, Inc.; and
(xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any propertyother material agreement, real or personalincluding a guarantee, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders not entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which business or that requires the payment by the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration Subsidiary in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations10,000.
(b) Each All contracts, agreements and instruments required to be listed in Schedule 3.14 (the “Material Contract is Contracts”) are valid and are in full force and effect, effect and is a constitute legal, valid and binding obligation obligations of the Company or a Subsidiary of and the Company which is party thereto, Subsidiaries and, to the knowledge of the CompanyStockholders, of the other parties thereto thereto, and are enforceable against each of them in accordance with its termstheir respective terms subject, in each case, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and or other similar Laws laws relating to or affecting creditors’ the rights or to general principles of equitycreditors generally. The Company has not received any written notice regarding termination of any Material Contracts. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, and to the knowledge of the CompanyStockholders, the no other party to each of the Material Contracts is not in material default in complying with any provisions of any Material Contract, and to the knowledge of the Stockholders, no condition or material breach thereunder. No event has occurred which wouldor fact exists which, with or without the notice, lapse of time or the giving of notice or both, could constitute a material breach or material default thereunder on the part of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure eventsSubsidiary. The Company has Stockholders have delivered or made available to the Purchaser true Buyer a true, correct and correct copies complete copy of each of the Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoContracts.
Appears in 1 contract
Contracts and Commitments. (a) Section 2.8 of the Disclosure Schedule sets forth, with respect to the Company and its subsidiaries, a complete and accurate list of: (i) all contracts or agreements, whether oral or written (including, without limitation, mortgages, leases, indentures and loan agreements), except (x) such contracts and agreements which are required to be set forth in the Disclosure Schedule pursuant to clauses (ii) through (xiii) of this Section 2.8 or are listed on other Disclosure Schedules required by this Agreement, (y) contracts and agreements which involve, or which may reasonably be expected to involve, the payment by or to any one or more of the Company and its subsidiaries of less than $50,000 with respect to any one contract or agreement or $75,000 with respect to any related group of contracts or agreements and (z) contracts or agreements in the nature of purchase and sales orders entered into by the Company or any subsidiary in the ordinary course of business and containing normal terms and conditions, (ii) all sales agency, distribution or dealership contracts that are not cancellable on notice of not less than 90 days and without liability, penalty or premium for such cancellation under such contract; (iii) all employment and consulting agreements or other agreements with employees that contain any severance or termination pay liabilities or obligations that are not cancellable on notice of not less than 90 days without liability, penalty or premium for such cancellation under such contract; (iv) all collective bargaining or union contracts or agreements; (v) all non-competition or other agreements between the Company or any of its subsidiaries and any third party preventing or restricting the Company or any of its subsidiaries from carrying on their respective businesses anywhere in the world; (vi) all debt obligations, mortgages, notes or indentures for borrowed money, including guaranties of or agreements to acquire any such debt obligation of others (other than obligations to be extinguished at or before the Closing) including the amount of any credit line or commitment and the names of all persons authorized to borrow or to discount debt obligations or otherwise act on behalf of the Company or any subsidiary in any dealings with any bank or financial institution; (vii) the name of each bank or other financial institution in which the Company or any subsidiary has an account or safe deposit box, the numbers of such accounts or boxes and the names of all persons authorized to draw thereof or have access thereto; (viii) the names of the ten largest suppliers to, and the ten largest customers of, the Company and its subsidiaries as a whole for the year ended December 31, 1997 together with the approximate dollar volume by supplier and customer and a general description of the goods or services provided by each supplier; (ix) all loans to, or guarantees of loans to, employees of the Company or any subsidiary made by the Company or any subsidiary; (x) all outstanding commitments by the Company or any subsidiary to make a capital expenditure, capital addition or capital improvement involving an amount in excess of $50,000, together with any Capital Expenditure Report by the Company or any subsidiary related to making or committing to make any capital expenditure, capital addition or capital improvement subsequent to the date hereof involving an amount in excess of $50,000; (xi) all contracts or agreements under which the Company or any subsidiary has granted, or is obligated to grant, rights to others to use, reproduce, market or exploit any United States or foreign patents, trademarks, trade names, service marks, service names, technology, copyrights, logos, brand names, designs, industrial designs, inventions, trade secrets, secret processes or know-how involving an amount in excess of $50,000; (xii) the names and current annual compensation rates of all employees of the Company or any subsidiary whose current annual rate of compensation (including bonuses) is $75,000 or more; and (xiii) the names of all retired employees of the Company or any subsidiary who are receiving or are entitled to receive any pension or other benefits under any unfunded plan not qualified under Section 401 of the Internal Revenue Code of 1954, as amended, their ages and their current annual unfunded pension rates.
(b) True and complete copies of all documents referred to in Section 2.8 of the Disclosure Schedule have been heretofore made available to the Buyer. Neither the Company nor any of its Subsidiaries are a party to any: (i) Contract containing non-competition subsidiaries is in default under any document listed or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager Section 2.8 of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, Disclosure Schedule and, to the knowledge of the CompanySeller, of the after due inquiry, no other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) person is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that breach thereof.
(c) All such a material breach or material default has occurred, and, to contracts have been entered into lawfully and individually and collectively do not violate the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or provisions of any material right federal, state or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect theretolocal, and no party has given written notice of any material dispute statute, rule, regulation or ordinance, including without limitation, with respect to any pricing, except for such violations which, individually or collectively, would not have a Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoAdverse Effect.
Appears in 1 contract
Contracts and Commitments. (a) Neither the Company nor any of its Subsidiaries are a party to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than Except as set forth in Section 5.14(a) 3.19 of the Sen Lang Disclosure Schedule, no Acquired Company is a party to any existing contract, obligation or commitment of any type in any of the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract following categories:
3.19.1 contracts for the employment purchase by the Acquired Companies of any individual on a full-time medicines, materials, supplies or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) equipment which is are not terminable with less than 30 cancelable upon 90 days’ or less notice and without any liability to the Company or its Subsidiaries; which either (xi) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders have not been entered into in the ordinary course of businessbusiness and consistent with past practice or (ii) provide for purchase prices substantially greater than those presently prevailing for such materials, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company supplies or any of its Subsidiaries grants to a third partyequipment, or a third party grants (iii) contracts obligating the Acquired Companies to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration make capital expenditures in excess of fifty thousand dollars ($50,000) per annum;
3.19.2 contracts under which the Acquired Companies has, other than (A) Contracts except by way of endorsement of negotiable instruments for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property collection in the ordinary course of business; business and consistent with past practice, become absolutely or contingently or otherwise liable for (xixi) except the performance of any other person, firm or corporation under a contract, or (ii) the whole or any part of the indebtedness or liabilities of any other person, firm or corporation;
3.19.3 powers of attorney outstanding from the Acquired Companies other than as issued in connection the ordinary course of business and consistent with past practice with respect to customs, insurance, patent, trademark or tax matters, or to agents for service of process;
3.19.4 contracts under which any amount payable by the transactions contemplated by this Agreement (includingAcquired Companies is dependent upon, for the avoidance of doubtor calculated in accordance with, the Pre-Closing Restructuring), Contracts relating to the acquisition revenues or disposition earnings (whether by merger, sale of equity, sale of assets or otherwiseany component thereof) of any Person Acquired Company;
3.19.5 contracts with any director, officer, employee or Affiliate (as defined herein) of the Acquired Companies other than in such person’s capacity as a director, officer or employee of an Acquired Company;
3.19.6 contracts which limit or restrict where any Acquired Company may conduct its business or the type or line of business entered into since in which any Acquired Company may engage;
3.19.7 contracts with any party for the Original Acquisition Date loan of money or availability of credit to or from any Acquired Company (and including except credit extended by an Acquired Company to customers in the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line ordinary course of business and (xx) consistent with past practice);
3.19.8 any settlement agreement with any third party material hedging, option, derivative or present or former employee, officer, director or manager of the Company other similar transaction; or
3.19.9 contracts pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
the Acquired Companies (a) grants any Person any exclusive license, exclusive option or other exclusive right with respect to any Sen Lang Intellectual Property, (b) Each Material Contract grants any Person any license, option or other right with respect to any Sen Lang Intellectual Property that is material to the business of the Acquired Companies or (c) is granted any license, option or other right with respect to any Sen Lang Intellectual Property that is material to the business of the Acquired Companies. True and complete copies of all contracts, obligations and commitments listed in Section 3.19 of the Sen Lang Disclosure Schedule have been delivered or made available to Avalon. None of the Acquired Companies or, to the knowledge of the Acquired Companies, any other party is in full force and effect, and is a legal, valid and binding obligation breach of or default under any of the Company or a Subsidiary contracts, obligations and commitments listed in Section 3.19 of the Company which is party thereto, Sen Lang Disclosure Schedule or under any other Sen Lang Contracts (and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material ContractSen Lang, no party thereto has given to facts or circumstances exist which could reasonably support the assertion of any other party thereto notice alleging that such a material breach or material default has occurreddefault) except for breaches and defaults which would not, and, to singly or in the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together aggregate with all amendmentsother such breaches, modifications or supplements theretohave a Sen Lang Material Adverse Effect.
Appears in 1 contract
Contracts and Commitments. (a) Neither Section 2.14(a) of the Company nor Disclosure Schedule sets forth a true, correct and complete list of each of the following Contracts (or group of related Contracts) relating to the Business or any of its Subsidiaries are a party to any: Acquired Asset:
(i) each Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict by which the Company’s Business, any member of the Seller Group or any of its Subsidiaries’ business activity the Acquired Assets are bound that would reasonably be expected to give rise to obligations, Liabilities, revenues or limit benefits exceeding $[**] (or the freedom equivalent value in the applicable currency), excluding Contracts for at-will employment with employees entered into in the Ordinary Course of Business;
(ii) each Contract between, on the one hand, any member of the Company Seller Group, and on the other hand, any Affiliate of Seller or any current or former officer, director, stockholder or employee of Seller or an Affiliate of such a Person (other than (A) offer letters for employment on an at-will basis without severance or retention payment provisions or notice requirements of more than thirty (30) days), (B) customary confidentiality, assignment of inventions and/or noncompetition or other similar arrangements and (C) employee benefits generally made available to employees of Seller);
(iii) each Contract evidencing Seller Indebtedness, including any loan or credit agreement, security agreement, guaranty, indenture, mortgage, pledge, conditional sale or title retention agreement, equipment obligation or lease purchase agreement by which any member of the Seller Group or any of its Subsidiaries the Acquired Assets are bound;
(iv) each Contract for the disposition of any significant portion of the Acquired Assets or the Business (other than sales of products in the Ordinary Course of Business) or for the acquisition by any member of the Seller Group of the assets or business of any other Person (other than purchases of inventory in the Ordinary Course of Business);
(v) each Contract to engage in which any member of the Seller Group is a party or by which the Business or any of the Acquired Assets are bound that contains any non- solicitation, non-competition, confidentiality or similar obligations binding any member of the Seller Group or the Business or that otherwise prohibits the Business from entering into any line of business business, or from freely providing services or supplying products to compete any customer or potential customer, or in any part of the world (other than any Contract with a customer or supplier entered into in the Ordinary Course of Business otherwise described by this clause (v) solely because it contains customary confidentiality restrictions);
(vi) each Contract in which any Person; member of the Seller Group has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or has agreed to purchase a minimum quantity of goods or services in excess of $[**] or has agreed to purchase goods or services exclusively from a specified person (iior group of persons);
(vii) each Contract under by which the Business or any of the Company Acquired Assets are bound for the cleanup, abatement or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director actions in connection with travelany Hazardous Material, entertainment and related business expenses the remediation of any existing environmental Liabilities, violation of any Environmental Laws or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; the performance of any environmental audit or study;
(ivviii) joint venture, each Contract concerning the establishment or operation of a partnership, strategic alliance joint venture or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than enterprise by which the Company Business or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; Acquired Assets are bound;
(ix) each Contract for which the consequences of a default or termination would constitute a Material Adverse Change;
(x) each Contract that is a Government Contract with respect to the Business or the Acquired Contracts in effect at any time since December 31, 2015;
(xi) each Contract that is a collective bargaining or union Contract relating to the Business or any of the Acquired Assets;
(xii) each Contract that would entitle any Third Party to receive a license or any other right to Intellectual Property of Buyer or any of Buyer’s Affiliates (excluding licenses of Intellectual Property included in the Acquired Assets pursuant to Outbound IP Licenses disclosed in Section 2.15(g) of the Disclosure Schedule) following the Closing;
(xiii) each Contract by which the Business or any of the Acquired Assets are bound that, following the Closing, would bind or purport to bind any of Buyer’s Affiliates;
(xiv) each Contract to which any member of the Seller Group is a party or by which the Business or any of the Acquired Assets are bound for the employment of any individual on a full-time or consulting basis (A) providing for base with annual compensation in excess of one hundred thousand dollars $[**]) or for the consulting services of any Person (the annual fees with respect to which consulting services are in excess of $100,000[**]), or any change in control, retention bonus, indemnification or severance Contract;
(xv) per annum, and each Contract (Bor group of related Contracts) which is not terminable with less than 30 days’ notice and without any liability for the lease of personal property from or to the Company or its Subsidiaries; Third Parties;
(xxvi) each Contract providing for any royalty, milestone or similar payments to by any employee, officer, director, consultant or individual service provider as a result member of the transactions contemplated by this Agreement; Seller Group;
(xixvii) each settlement agreement or indenture relating settlement-related agreement (including any agreement in connection with which any employment-related claim is settled);
(xviii) each agency, distributor, sales representative, franchise or similar agreements to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on which any portion member of the assets Seller Group is a party or by which any member of the Company or Seller Group is bound;
(xix) each Contract which contains any provisions requiring any member of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by the Seller Group to indemnify any other partyparty (excluding indemnities contained in Contracts for the purchase, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease sale or agreement under which it is lessor license of products or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders services entered into in the ordinary course Ordinary Course of business, any Contracts with any supplier required to be listed on Schedule 5.22Business); (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and and
(xx) any settlement other Contract (or group of related Contracts) either involving more than $20,000 or not entered into in the Ordinary Course of Business; provided, however, that no agreement with referred to in clauses (i) through (xx) above need be disclosed unless the Seller currently has, or may in the future have, any third party rights or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligationsobligations thereunder.
(b) Seller has made available to Buyer a true, correct and complete copy of each Material Contract (as amended to date). Each Material Contract (i) is in full force and effect, effect and is a legal, valid valid, binding and binding enforceable obligation of the Company or a Subsidiary member of the Company which is party thereto, Seller Group and, to the knowledge of the CompanySeller, each of the other parties thereto and (ii) is assignable by a member of the Seller Group to Buyer without the consent or approval of any party and will continue to be legal, valid, binding and enforceable against each of them and in full force and effect immediately following the Closing in accordance with its termsthe terms thereof as in effect immediately prior to the Closing. Except for violations, in each case, subject to bankruptcy, insolvency, reorganization, moratorium breaches or defaults which have been cured and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary for which no member of the Company (as applicable) is Seller Group has any Liability, neither any member of the Seller Group nor, to the knowledge of Seller, any other party to any Material Contract, has breached or defaulted in any material respect under, or has improperly terminated, revoked or accelerated, any Material Contract, and there exists no condition or event which, after notice, lapse of time or both, would constitute any such breach, default, termination, revocation or acceleration. No member of the Seller Group has received notice of default under any Material Contract, no . No member of the Seller Group has been a party thereto has given to any Contract, transaction or other party thereto notice alleging that such a material breach arrangement with respect to the Business or material default has occurredthe Acquired Assets with any current or former officers, anddirectors, stockholders, employees or Affiliates of Seller or, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations underSeller, any Material Contract current or former Affiliate of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoPersons.
Appears in 1 contract
Contracts and Commitments. (a) Neither Except with regard to any Contracts or other agreements set forth on the Franchise Schedule or as set forth on the Contracts Schedule, neither the Company nor any of its Subsidiaries are is a party to anyany of the following contracts, other agreements or arrangements: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of the Company or any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employmentlabor union; (viiii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) 5.11 or the Disclosure Schedules relating thereto; (viiiiii) stock purchase, stock option or similar plan; (ixiv) Contract contract for the employment of any officer, individual employee or other person on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) 150,000 per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xiv) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xiivi) guaranty of any obligation for borrowed money or other material guaranty; (xiiivii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000)50,000; (xivviii) lease or agreement under which it is lessor of or permits any third-third party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000)50,000; (xvix) Contracts requiring contract or providing group of related contracts with the same party for any capital expenditure that requires annual future payments in excess the purchase of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) products or services, other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to under which the undelivered balance of such products and services has a selling price in excess of $250,000 which cannot be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which cancelled by the Company or any of its Subsidiaries grants without penalty or without more than 90 days’ notice; (x) contract or group of related contracts with the same party for the sale of products or services, other than purchase orders entered into in the ordinary course of business, under which the undelivered balance of such products or services has a sales price in excess of $250,000 which cannot be cancelled by the Company or any of its Subsidiaries without penalty or without more than 90 days’ notice; (xi) contract which materially prohibits the Company or any of its Subsidiaries from freely engaging in business anywhere in the world; (xii) contracts relating to the licensing of Intellectual Property by the Company or any of its Subsidiaries to a third party, party or by a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual PropertySubsidiaries (other than (A) contracts for generally commercially available off-the-shelf software and (B) the Franchise Documents), in each case involving consideration in excess of fifty thousand dollars ($50,000) 150,000 per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xxxiii) any settlement agreement with any third party all agreements between or present or former employee, officer, director or manager of the Company pursuant to which among the Company or any Subsidiary, on the one hand, and Seller or any of its Subsidiaries has material ongoing obligationsAffiliates (other than the Company or any Subsidiary), on the other hand.
(b) Each Material Contract of the contracts listed on the Contracts Schedule is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither neither the Company nor any Subsidiary of the Company its Subsidiaries (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurredcontract listed on the Contracts Schedule, and, to the knowledge of the CompanySeller, the other party to each of the Material contracts listed on the Contracts is Schedule in not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements thereto.
Appears in 1 contract
Contracts and Commitments. (a) Neither Schedule 2.11 contains, with respect to the Company nor any Business, a complete and accurate list of its Subsidiaries are a party to any: all contracts, agreements, commitments, instruments and obligations (whether written or oral, contingent or otherwise) of Sellers (the “Sellers Agreements”) involving:
(i) Contract containing nonThe lease, as lessee or lessor, or license (as licensee or licensor) of any real or personal property (tangible or intangible);
(ii) The employment or engagement of any employee, consultant or agent, other than those terminable at will without severance obligation;
(iii) The purchase of supplies or products from, or for the performance of services by, a third party in excess of One Thousand Dollars ($1,000.00) in any individual case;
(iv) The sale of supplies or products, or for the performance of services, by any Seller in excess of One Thousand Dollars ($1,000.00) in any individual case;
(v) The incurrence of indebtedness or the making of any loans;
(vi) Any license, franchise or distributorship, or copyright, or any ideas, technical assistance or other know-competition how of or non-solicitation used by any Seller;
(excluding such covenants contained vii) Capital expenditures or the acquisition or construction of fixed assets requiring payment by any Seller of Five Thousand Dollars ($5,000.00) individually, or Ten Thousand Dollars ($10,000.00) in customary non-disclosure agreementsthe aggregate;
(viii) covenants The grant to any third party of a Lien on all or otherwise containing covenants that purport to restrict any material part of any assets;
(ix) Any joint venture or partnership or other contract providing for the Company’s sharing of profits;
(x) Any arrangement limiting the freedom of any Seller or any of its Subsidiaries’ business activity affiliates to compete in any manner in the Business or limit the freedom of the Company requiring any Seller or any of its Subsidiaries affiliates to engage in any line of business or to compete with any Person; (ii) Contract under which any share profits of the Company or its Subsidiaries has made advances or loans Business;
(xi) Any arrangement related to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses the Business that is not in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; ;
(xii) guaranty Any arrangement related to the Business involving any affiliate of Sellers, including, without limitation, any obligation for borrowed money or other material guaranty; agreement between an Owner and a Seller related to the Business;
(xiii) lease or Any agreement under which it is lessee of, or holds or operates between any personal property owned by Seller and any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000)third party payor; and
(xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure Any other arrangement that requires annual future performance for a period of more than 90 days or that requires payments in excess of three hundred and fifty thousand dollars One Thousand Dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring1,000.00), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is Sellers have delivered to Purchasers true and complete copies of all of the Sellers Agreements included among the Assumed Liabilities and such others as have been requested by Purchasers. Except as indicated on Schedule 2.11, the Sellers Agreements are valid and effective in full force and effectaccordance with their terms, and there is not under any of such Sellers Agreements (i) any existing or claimed default or breach by a legalSeller or event which, valid with the notice or lapse of time or both, would constitute a default or breach by a Seller or (ii) to the knowledge of Sellers, any existing or claimed default or breach by any other party or event which with notice or lapse of time, or both, would constitute a default or breach by any such party. Except as indicated on Schedule 2.11, the continuation, validity and binding obligation effectiveness of the Company Sellers Agreements will not be affected by the Acquisition, and the Acquisition will not result in a breach of, or a Subsidiary default under, or require the consent of any other party to, any of the Company which Sellers Agreements. There is party thereto, andno actual or, to the knowledge of Sellers, threatened termination, cancellation or limitation of any Sellers Agreements. To the Companyknowledge of Sellers, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to there is no pending or threatened bankruptcy, insolvency, reorganization, moratorium and insolvency or similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given proceeding with respect to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge any of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoSellers Agreements.
Appears in 1 contract
Contracts and Commitments. Schedule 3.09 lists all of the following contracts, agreements, licenses and commitments to which the Company or ALC is a party or by which it is bound (other than leases and subleases set forth in Schedule 3.16 and the employee benefit materials disclosed in Schedule 3.10) (collectively, the "MATERIAL AGREEMENTS"):
(a) Neither mortgages, indentures, security agreements, guaranties or other agreements and instruments relating to the Company nor any borrowing of its Subsidiaries are a party money, the extension of credit or the granting of liens or encumbrances;
(b) employment and consulting agreements;
(c) union or other collective bargaining agreements;
(d) powers of attorney;
(e) sales agency, manufacturers representative and distributorship agreements or other distribution or commission arrangements;
(f) licenses of material patent, trademark and other intellectual property rights;
(g) contracts or options relating to any: (i) Contract containing non-competition or non-solicitation (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of sale by the Company or ALC of any of its Subsidiaries to engage in any line of business or to compete with any Person; (ii) Contract under which any of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000asset, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses sales of inventory in the ordinary course of business; ;
(iiih) Contracts relating to Indebtedness; agreements or commitments for capital expenditures in excess of $100,000 for any single project;
(ivi) joint ventureventure agreements;
(j) agreements expressly requiring the consent of any party thereto to the consummation of the Merger;
(k) agreements, partnershiparrangements or understandings with any officer, strategic alliance director, employee or similar agreements shareholder of the Company or arrangements; (v) Contract ALC (other than Franchise Agreementsarrangements with respect to the compensation of employees);
(l) that grants to agreements, contracts or commitments for any Person other than charitable or political contribution;
(m) agreements restricting the Company or ALC from relocating, closing or terminating any of its Subsidiaries their respective operations or facilities;
(An) most favored pricing provisions agreements purporting to limit the right of the Company or ALC to compete in any line of business, with any person or other entity or in any geographic area;
(Bo) any exclusive rightsconfidentiality, rights of first refusal, rights of first negotiation settlement or other similar rightsagreements entered into within the last three years other than those entered into with the Company's customers, suppliers and subcontractors or in connection with a possible disposition of the Company; or
(vip) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wagesagreement, hours and other conditions of employment; contract or obligation (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth those arising in Section 5.14(athe ordinary course of business) entered into on or prior to the Disclosure Schedules relating thereto; (viii) stock purchasedate hereof calling for or involving the payment, stock option potential payment or similar plan; (ix) Contract for the employment of any individual on a full-time accrued obligation by or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employeeALC, officerfrom the date hereof through the earliest date such agreement, directorcontract or obligation can be terminated unilaterally without material penalty by the Company or ALC, consultant of an amount in excess of $100,000. To the knowledge of the Company and ALC, all of the Material Agreements are legal, valid, binding and in full force and effect, no default exists thereunder on the part of the Company or individual service provider as a result ALC, and the consummation of the transactions contemplated by this Agreement; (xi) agreement Agreement will not cause any default or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty condition in respect of any obligation for borrowed money such Material Agreement, the effect of which is to cause, permit, create or other material guaranty; perfect the right in any party (xiiii) lease to repudiate or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22; (xvii) material Contract with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of disavow its Subsidiaries grants to a third party, or a third party grants obligations to the Company or any of its SubsidiariesALC thereunder, a license (ii) to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for require or have the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating right to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which require the Company or any of ALC to perform its Subsidiaries has material ongoing obligations.
obligations thereunder (bincluding obligations to pay Indebtedness) Each Material Contract is in full force prior to such time on which, or on terms and effectconditions otherwise different from those that, and is a legal, valid and binding obligation of are provided therein or (iii) to recover from the Company or a Subsidiary of the Company which is party thereto, and, to ALC any damages or fines. To the knowledge of the CompanyCompany and ALC, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither no party (including the Company nor or ALC) to any Subsidiary of the Company (as applicable) such Material Agreement is in material default under any Material Contractthereunder. True, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge correct and complete copies of the Company, the other party to each of all the Material Contracts is not in material default Agreements have been delivered or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoBuyer.
Appears in 1 contract
Sources: Merger Agreement (Mail Well Inc)
Contracts and Commitments. (aExcept as set forth on Schedule 2.1(p) Neither or Schedule 2.1(l) or as contemplated under Article III, the Company nor any of its Subsidiaries are is not a party to any: or subject to any liabilities arising from:
(i) Contract containing non-competition any management or non-solicitation employment contract, special termination agreement or other contract for personal services with an officer, consultant, director, employee or other person that is not terminable by the Company on not more than one (excluding such covenants contained in customary non-disclosure agreements1) covenants or otherwise containing covenants that purport month's notice without penalty;
(ii) any single contract to restrict the Company’s sell goods or any single contract to purchase goods which exceeds $5,000 in price which was not incurred in the ordinary course of its Subsidiaries’ business activity business;
(iii) except for the Union Agreement, any agreement providing for liability for severance pay, labor contracts, or limit labor or personnel policies;
(iv) any contract, agreement, or instrument, not reflected in the freedom Financial Statements, evidencing or relating to any outstanding indebtedness for borrowed money or the deferred purchase price of property, or any direct or indirect guarantee of any such indebtedness or deferred purchase price;
(v) except as noted under Schedule 2.1(n) or 3.9 or as contemplated under Article III, any agreement that restricts the right of the Company or any of its Subsidiaries to engage in any line of business business, solicit employees or to customers or otherwise compete with in any Person; line of business;
(iivi) Contract under which any of contract, commitment, or agreement that involves (A) any single capital expenditures by the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses 5,000 which expenditure is not in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions Company's business or (B) any exclusive rightsexcept as contemplated in Article III, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wages, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or the Disclosure Schedules relating thereto; (viii) stock purchase, stock option or similar plan; (ix) Contract for the employment disposition of any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets of the Company or any of its Subsidiaries; (xii) guaranty of any obligation for borrowed money or other material guaranty; (xiii) lease or agreement under which it is lessee of, or holds or operates any personal property owned by any other party, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xiv) lease or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) reflected in the aggregate; (xvi) other than purchase orders entered into Financial Statements not in the ordinary course of businessbusiness consistent with past practices;
(vii) except as contemplated under Article III, any Contracts with contract, commitment, or agreement between (A) the Company and (B) any supplier required to be listed on Schedule 5.22; shareholder, officer or director (xviior any of their affiliates) material Contract with a Governmental Body; of the Company;
(xviiiviii) Contracts pursuant to except for that certain Agreement of Limited Partnership of Wesley Hotel Group, ▇▇▇. ▇ated April 18, 1988, as amended (the "Partnership Agreement"), and that certain Certificate of Limited Partnership of Wesley Hotel Group, ▇▇▇. dated April 18, 1988, as amended, any partnership agreement in which the Company is a partner; or
(ix) except for the Partnership Agreement, any joint venture contract or arrangement or any other agreement that involves a sharing of its Subsidiaries grants to a third party, or a third party grants to profits. Complete and correct copies (in the Company or case of any of its Subsidiaries, a license to any Intellectual Property, the foregoing that are in each case involving consideration in excess of fifty thousand dollars writing) or descriptions ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course case of business; (xix) except any of the foregoing that are not in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwisewriting) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of the Company or a Subsidiary of the Company which is party thereto, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party foregoing have been delivered to any Material Contract has exercised any termination rights with respect thereto, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure events. The Company has made available to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoPurchaser.
Appears in 1 contract
Contracts and Commitments. Schedule 4.13 is a complete and correct list setting forth the following information:
(i) all real property owned of record or beneficially by the Company or any Subsidiary and all Leases of personal property (excluding immaterial Leases) to which the Company or any Subsidiary is a party, with a brief description of the property to which each such lease relates and the rental terms (including rents, termination dates, renewal conditions and options to purchase or terminate);
(ii) all policies of insurance in force (with a notation as to the status of premiums paid or payable thereon) insuring the properties, buildings, machinery, equipment, fixtures or other assets of the Company and any Subsidiary, including, without limitation, product liability insurance;
(a) Neither all contracts, understandings or binding commitments, whether oral or written (including, without limitation, mortgages, leases, indentures and loan agreements) to which the Company nor or any Subsidiary is a party, or to which the Company or any Subsidiary or any assets or properties of its the Company or any Subsidiary is subject, except (x) such contracts, understandings and binding commitments which are listed on other Schedules required by this Agreement, (y) contracts, understandings and binding commitments entered into in the ordinary course of business and which involve, or which may reasonably be expected to involve, the payment by or to any one or more of the Company and the Subsidiaries are of less than $25,000 with respect to any one contract or commitment or $50,000 with respect to any related group of contracts or commitments and none of which involves a party to any: commitment in excess of one year and (iz) Contract contracts, understandings or commitments in the nature of purchase and sales orders entered into by the Company or any Subsidiary in the ordinary course of business and containing non-competition or non-solicitation normal terms and conditions (excluding such covenants contained in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict including those arising out of "alliance" relationships being cultivated with certain of the Company’s 's customers), and (b) any contracts, understandings or binding commitments, whether oral or written, not in the ordinary course of business to which the Company or any of its Subsidiaries’ business activity or limit Subsidiary is a party;
(iv) all contracts containing any covenant restricting the freedom of the Company or any of its Subsidiaries Subsidiary to engage compete in any line of business or to compete with any Person; (ii) Contract under which person or to conduct business in any part of the Company or its Subsidiaries has made advances or loans to another Person in excess of one hundred thousand dollars $100,000, other than to inter-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses in the ordinary course of business; (iii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; world;
(v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions or (B) any exclusive rightsall collective bargaining agreements, rights of first refusalemployment, rights of first negotiation consulting and termination agreements, executive compensation plans, bonus plans or other similar rights; (vi) collective bargaining agreement or Contract with any other employee representative of a group of employees relating to wagesincentive compensation plans, hours and other conditions of employment; (vii) bonus, pension, profit sharing, retirement or other form of deferred compensation planagreements, other than as set forth in Section 5.14(a) severance pay arrangements, pension plans, employee retirement plans (whether funded or the Disclosure Schedules relating thereto; (viii) unfunded), employee stock purchase, stock ownership, stock option or similar profit sharing plans, any other "employee benefit plan; " (ixas defined in Section 3(3) Contract for of the employment Employee Retirement Income Security Act of any individual on a full-time 1974, as amended, ("ERISA")), group life insurance or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, hospitalization insurance and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company all trust agreements or its Subsidiaries; (x) Contract providing for payments other agreements relating to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgagingabove, pledging or otherwise placing a Lien (other than a Permitted Lien) on whether any portion of the assets above are written or oral;
(vi) the names and current annual compensation rates of all employees of the Company or any Subsidiary whose current annual rate of compensation (including bonuses) is $50,000 or more;
(vii) the names of all retired officers and employees of the Company or any Subsidiary who are receiving or are entitled to receive any pension or other benefits under any unfunded plan not qualified under Section 401 of the Internal Revenue Code of 1954, as amended, their ages and their current annual unfunded pension rates;
(viii) the name of each bank or other financial institution from which loans, lines of credit or other credit commitments to the Company or any Subsidiary are outstanding, the amount of each such line or commitment and the names of all persons authorized to borrow or to discount debt obligations or otherwise act on behalf of the Company or any Subsidiary in any dealings with such bank or financial institution;
(ix) the name of each bank or other financial institution in which the Company or any Subsidiary has an account or safe deposit box, the numbers of such accounts or boxes and the names of all persons authorized to draw thereon or have access thereto;
(x) the names of the ten largest suppliers to, and then ten largest customers of, the Company and its Subsidiaries; Subsidiaries as a whole for the twelve-month period ended December 31, 1995 together with the appropriate dollar volume by supplier and customer and a general description of the goods or services provided by each supplier;
(xi) all arrangements respecting loans to, or guarantees of loans to, employees of the Company or any Subsidiary made by the Company or any Subsidiary;
(xii) guaranty a summary of any obligation claims by line of insurance coverage for borrowed money the Company and the Subsidiaries for the years 1992 through the date of this Agreement and a list of all open insurance contracts under which audit, retrospective or other material guaranty; experience adjustments can be made;
(xiii) lease all outstanding commitments by the Company or agreement under which it is lessee ofany Subsidiary to make a capital expenditure, capital addition or holds capital improvement involving an 26 21 amount in excess of $20,000, together with a description of any proposal by the Company or operates any personal property owned by Subsidiary to make or commit to make any other partycapital expenditure, for which capital addition or capital improvement subsequent to the annual rental exceeds one hundred thousand dollars (date hereof involving an amount in excess of $100,000); 20,000;
(xiv) lease all United States and foreign patents, trademarks, trade names, service marks, service names, copyrights, logos and brand names and all pending registrations and applications for any of the foregoing currently owned or agreement under which it is lessor of used by, or permits licensed to, the Company or any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); Subsidiary;
(xv) Contracts requiring all contracts, agreements or providing for other arrangements under which the Company or any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars Subsidiary has granted, or is obligated to grant, rights to others to use, reproduce, market or exploit any Intangible Property ($350,000) in the aggregate; as hereinafter defined);
(xvi) any organization described in Section 501(c)(3) of the Code that normally receives more than one-third of its support in any taxable year from gifts, grants, or contributions from the Company and the Subsidiaries and/or their officers and employees; and
(xvii) Any other than purchase orders material contract or binding commitment not entered into in the ordinary course of business. True and complete copies of all documents referred to in such list (the "Contracts") were delivered or made available to Parent and its counsel, any together with all amendments thereto. All of the Contracts with any supplier required to be listed set forth on Schedule 5.22; (xvii) material Contract 4.13 are valid and binding in accordance with a Governmental Body; (xviii) Contracts pursuant to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (their terms and including the transactions consummated on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract is in full force and effect, and is a legal, valid and binding obligation of no breach or default by the Company or a Subsidiary of the Company which is party theretoany Subsidiary, and, to the knowledge of the Company, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which wouldwhich, with notice or without the lapse of time or the giving of notice or both, could constitute a material breach or material default of by the Company or any Subsidiary of the CompanySubsidiary, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights exists with respect thereto, and no party thereto has given written notice of any material dispute with respect or asserted to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary that the Company or any Subsidiary is in default thereunder. To the best of the Company's knowledge, no party to perform their respective obligations any Contract has any current intention to (a) terminate such Contract (prior to its expiration date) or amend the terms thereof, (b) decrease significantly the volume or nature of the business conducted with the Company and its Subsidiaries under such contract as a result of COVID-19 Contract, (c) refuse to renew such Contract upon expiration thereof, or other force majeure events. The (d) renew such Contract upon expiration thereof on terms and conditions which are less favorable for the Company has made available or its Subsidiaries than those pertaining to the Purchaser true and correct copies of each Material Contract (or a written description of each such Material Contract that is not writing), together with all amendments, modifications or supplements theretoContract.
Appears in 1 contract
Sources: Merger Agreement (Hubbell Inc)
Contracts and Commitments. (a) Neither The “Contracts Schedule” attached hereto lists all of the following Contracts to which any member of the Company nor Group is a party, which are currently in effect, and by which any of its Subsidiaries them or their respective assets or properties are a party to any: bound:
(i) Contract Contracts (or a group of related Contracts with the same party) which provide for the purchase of goods or services by any member of the Company Group, under which the undelivered balance of such products or services has a purchase price in excess of $250,000;
(ii) Contracts (or a group of related Contracts with the same party) which provide for the sale of products or services by any member of the Company Group, under which the undelivered balance of such products or services has a sale price in excess of $250,000 other than purchase orders for the purchase of inventory in the ordinary course of business;
(iii) Contracts relating to Indebtedness of any member of the Company Group, or under which any member of the Company Group has made advances or loans to any other Person other than advances made to employees with respect to business expenses in the ordinary course of business consistent with past practice;
(iv) Contracts with dealers, distributors or sales representatives that cannot be terminated by a member of the Company Group on no more than 90 days’ notice without material expense;
(A) Contracts relating to joint ventures, strategic alliances or partnerships; (B) Contracts for the sale of any of the MATERIAL assets of any member of the Company Group other than in the ordinary course of business consistent with past practice or for the grant to any Person of any preferential rights to purchase any of the assets of any member of the Company Group; and (C) Contracts for the acquisition (by merger, purchase of stock or assets or otherwise) by any member of the Company Group of any operating business or MATERIAL assets or the capital stock of any other Person, in each case, pursuant to which a member of the Company Group has any ongoing MATERIAL obligations or MATERIAL liabilities;
(vi) Contracts containing any “non-competition competition”, “exclusivity” or non-other similar provision that restrains, restricts, limits or impedes the ability of any member of the Company Group to compete in any line of business or with any Person in any geographical area or that prohibits or restricts the solicitation for employment of any persons (excluding such covenants contained other than prohibitions and restrictions set forth in customary non-disclosure agreements) covenants or otherwise containing covenants that purport to restrict the Company’s or any of its Subsidiaries’ business activity or limit the freedom of agreements entered into by the Company or any of its Subsidiaries to engage in any line the ordinary course of business or consistent with past practice);
(vii) Contracts relating to compete with the licensing of Proprietary Rights by any Person; (ii) Contract under which any member of the Company Group to a third party or its Subsidiaries has made advances or loans by a third party to another Person in excess a member of one hundred thousand dollars $100,000, other than to interthe Company Group (excluding non-company loans or advances to any employee or director in connection with travel, entertainment and related business expenses or other customary out-of-pocket expenses exclusive licenses entered into in the ordinary course of business; );
(iiiviii) Contracts relating to Indebtedness; (iv) joint venture, partnership, strategic alliance or similar agreements or arrangements; (v) Contract (other than Franchise Agreements) that grants to any Person other than the Company or any of its Subsidiaries (A) most favored pricing provisions employment, consulting and non-competition Contracts with any employee, officer or consultant whose base annual compensation is equal to or greater than $100,000; (B) any exclusive rights, rights of first refusal, rights of first negotiation or other similar rights; (vi) collective bargaining agreement agreements or Contract Contracts with any other labor union or association representing any employee representative of a group any member of employees relating to wages, hours the Company Group; and other conditions of employment; (viiC) bonus, pension, profit sharing, retirement or other form of deferred compensation plan, other than as set forth in Section 5.14(a) or on the Disclosure Schedules relating thereto“Employee Benefits Schedule”; (viii) stock purchase, stock option or similar plan; and
(ix) Contract for the employment of Contracts pursuant to which any individual on a full-time or consulting basis (A) providing for base compensation in excess of one hundred thousand dollars ($100,000) per annum, and (B) which is not terminable with less than 30 days’ notice and without any liability to the Company or its Subsidiaries; (x) Contract providing for payments to any employee, officer, director, consultant or individual service provider as a result of the transactions contemplated by this Agreement; (xi) agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a Lien (other than a Permitted Lien) on any portion of the assets member of the Company Group is a lessor of or permits any of its Subsidiaries; (xii) guaranty of third party to hold or operate any obligation for borrowed money property, personal or other material guaranty; (xiii) lease real, or agreement under which it is a lessee of, or holds or operates any personal property owned by any other partyanother Person, for which the annual rental exceeds one hundred thousand dollars $250,000.
($100,000b) Except as disclosed on the attached “Contracts Schedule”, (i) no Contract set forth or required to be set forth on the attached “Contracts Schedule” has been breached in any material respect by the member of the Company Group party thereto or, to the Company’s Knowledge, by the other party thereto (which has not been duly cured), or canceled by the other party; (xivii) lease no member of the Company Group is in receipt of any written claim of default dated less than three months prior to the date of this Agreement under any Contract listed or agreement under which it is lessor of or permits any third-party to hold or operate any property, real or personal, for which the annual rental exceeds one hundred thousand dollars ($100,000); (xv) Contracts requiring or providing for any capital expenditure that requires annual future payments in excess of three hundred and fifty thousand dollars ($350,000) in the aggregate; (xvi) other than purchase orders entered into in the ordinary course of business, any Contracts with any supplier required to be listed on Schedule 5.22the “Contracts Schedule”; and (xviiiii) material each Contract with a Governmental Body; (xviii) Contracts pursuant listed or required to which the Company or any of its Subsidiaries grants to a third party, or a third party grants to the Company or any of its Subsidiaries, a license to any Intellectual Property, in each case involving consideration in excess of fifty thousand dollars ($50,000) per annum, other than (A) Contracts for the license of commercially available, off-the-shelf software or (B) Contracts for the non-exclusive license of Intellectual Property in the ordinary course of business; (xix) except in connection with the transactions contemplated by this Agreement (including, for the avoidance of doubt, the Pre-Closing Restructuring), Contracts relating to the acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business entered into since the Original Acquisition Date (and including the transactions consummated be listed on the Original Acquisition Date) or the future acquisition or disposition (whether by merger, sale of equity, sale of assets or otherwise) of any Person or line of business and (xx) any settlement agreement with any third party or present or former employee, officer, director or manager of the Company pursuant to which the Company or any of its Subsidiaries has material ongoing obligations.
(b) Each Material Contract attached “Contracts Schedule” is in full force and effect, effect and is a legalvalid, valid binding and binding obligation enforceable against the Company or one or more members of the Company or a Subsidiary of the Company which is party theretoGroup, andas applicable, to the knowledge of the Companyexcept as such enforceability may be limited by (A) applicable insolvency, of the other parties thereto enforceable against each of them in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and or other similar Laws relating to or affecting creditors’ rights or to general principles of equity. Neither the Company nor any Subsidiary of the Company (as applicable) is in material default under any Material Contract, no party thereto has given to any other party thereto notice alleging that such a material breach or material default has occurred, and, to the knowledge of the Company, the other party to each of the Material Contracts is not in material default or material breach thereunder. No event has occurred which would, with or without the lapse of time or the giving of notice or both, constitute a material breach or material default of the Company or any Subsidiary of the Company, or permit any early termination, modification, acceleration or cancellation of, or otherwise adversely affect the Company’s or any of its Subsidiaries’ rights or obligations under, any Material Contract or of any material right or obligation thereunder. No party to any Material Contract has exercised any termination rights with respect theretogenerally, and no party has given written notice of any material dispute with respect to any Material Contract. Neither the Company, nor any Subsidiary of the Company, has delivered notice to (B) applicable equitable principles (whether considered in a proceeding at law or contacted any counterparty to any Material Contract requesting an amendment to such contract regarding the inability of the Company or any Subsidiary to perform their respective obligations under such contract as a result of COVID-19 or other force majeure eventsin equity). The Company has made available to the Purchaser true correct and correct complete copies of each Material Contract (listed or a written description of each such Material Contract that is not writing)required to be listed on the “Contracts Schedule”, together with all amendments, modifications or supplements thereto.;
Appears in 1 contract
Sources: Merger Agreement (Nordson Corp)