Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto: (a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000); (b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property; (c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees; (d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise); (e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary; (f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary; (g) all partnership, joint venture, shareholders' or similar Contracts with any Person; (h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition; (i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and (j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consents.
Appears in 1 contract
Sources: Merger Agreement (24/7 Media Inc)
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant Section 3.14 of the Disclosure Schedule lists the following agreements (written or oral) to which Interactive or the Subsidiary, or another Company is a party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") date of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;this Agreement:
(i) any Contracts agreement (or group of related agreements) involving more than $50,000 for the lease of personal property from or to third parties;
(ii) any agreement (or group of related agreements) in which restrict Interactive the Company has granted manufacturing rights, "most favored nation" pricing provisions or marketing or distribution rights relating to any 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 it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $50,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Company (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(vi) any agreement concerning confidentiality or noncompetition;
(vii) any employment or consulting agreement;
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(ix) any agreement which contains any provisions requiring the Company to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products or provision of services or the Subsidiary from freely engaging agreements entered into in business the Ordinary Course of Business);
(x) any agreement involving any current or competing anywhereformer officer, director or stockholder of the Company or an Affiliate thereof; and
(jxi) any Contracts which otherwise are material to other agreement (or group of related agreements) either involving more than $250,000 or not entered into in the Condition Ordinary Course of Interactive Business.
(b) The Company has provided or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ Parent at the Company's principal place of business a complete and Advercomm. All accurate copy of each agreement listed in Section 3.14 of the Scheduled Contracts are Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, valid, binding and enforceable (except to the extent that enforcement of the rights and remedies created thereby is subject to bankruptcy, insolvency, reorganization, moratorium and other similar laws of general application affecting the rights and remedies of creditors and to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law)) and in full force and effect effect; and constitute legal, valid and binding obligations of Interactive and (ii) neither the Subsidiary andCompany nor, to the best knowledge of Interactive the Company, any other party, is in breach or violation of, or default under, any such agreement, and the Subsidiaryno event has occurred, the other parties thereto; is pending or, to the best knowledge of Interactive's and the Subsidiary's knowledgeCompany, no circumstances exist which is threatened, which, after the giving of notice, with lapse of time, or otherwise, would give rise to an Action (as defined in Section 2.13) against constitute a breach or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require Company or, to the knowledge of the Company, any third other party consentsunder such agreement.
Appears in 1 contract
Contracts. Interactive Cardium or Angionetics has made available to Investor a true and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any correct copy of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") each of the following typesContracts to which any Angionetics is a party or by which any of Angionetics’ assets or properties, except for those (are bound as of the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretodate hereof:
(a) any Contract or series of related Contracts pursuant to which Interactive Angionetics is a party to or the Subsidiaryby which it is bound that involves (i) obligations of, or another party thereto, is obligated to pay payments by Angionetics in excess of fifty thousand dollars $20,000 other than in the ordinary course of Angionetics’ business, or ($50,000)ii) the license of any patent, copyright, trade secret or other proprietary right to or from Angionetics, or (iii) the granting of any rights affecting the development, manufacture, licensing, marketing, sale or distribution of Angionetics’ products or services or (iv) indemnification by Angionetics with respect to infringements of proprietary rights;
(b) any Contracts pursuant Contract to which Interactive grant any severance or other termination pay or benefits or any compromise or settlement agreement relating to the Subsidiary acquired the right to use waiver or settlement of any Intellectual Property (as defined other employee rights or claims, in Section 2.9 below) any case where such Contract has continuing financial obligations or information that is material to or necessary in the business of Interactive or the Subsidiaryeffects, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertyincluding stock options;
(c) any Contracts Contract that Angionetics may not terminate in its discretion, with ninety (90) or fewer days’ notice, in each case without Liability or other further material obligations, other than advances (i) nondisclosure or confidentiality agreements, (ii) nondisclosure or confidentiality provisions in Contracts entered into in the ordinary course of expenses to employees business and (iii) Contracts with customers entered into in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;.
(d) any Contracts between Interactivedistributor, on the one handreseller, and any of its officersrevenue sharing, directors, employees sales representative or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise)similar Contract;
(e) any deferred compensation agreementsContract (i) limiting the freedom of a Angionetics to engage or participate, bonusor compete with any other Person, pensionin any line of business, profit sharingmarket or geographic area, stock option and incentive plans or arrangementsto make use of any Intellectual Property, hospitalization(ii) under which the Angionetics grants most favored customer pricing, medical and insurance plansexclusive sales, agreements and policiesdistribution, retirement and severance plans and marketing or other employee compensation policies and agreements affecting employees exclusive rights, rights of Interactive refusal, rights of first negotiation or similar rights and/or terms to any Person, or (iii) otherwise limiting the Subsidiaryright of a Angionetics to (A) sell, distribute or manufacture any products, services, or Technology; (B) purchase or otherwise obtain any services or any software or other Technology, or (C) grant reseller rights to third parties;
(f) any Contracts with Contract restricting the ability of Angionetics or any labor union affecting employees of Interactive its respective Employees to hire or the Subsidiarysolicit potential Employees;
(g) all partnership, joint venture, shareholders' Contracts pursuant to which Angionetics has agreed to any restriction on the right to use or similar Contracts with enforce any PersonTechnology or Intellectual Property;
(h) all Contracts that limit pursuant to which Angionetics has agreed to transfer or contain restrictions on sell rights in or with respect to any Technology or Intellectual Property, other than licenses in the ability ordinary course of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionbusiness;
(i) any Contracts which restrict Interactive Contract providing for the development of any Technology, independently or the Subsidiary from freely engaging in business jointly, by or competing anywhere; andfor Angionetics, including any invention assignment or similar Contract between Angionetics and an Employee;
(j) any Contracts which otherwise are material Contract evidencing Indebtedness to any Person, or any agreement of guaranty, indemnification or other similar commitment with respect to the Condition obligations or Liabilities of Interactive any other Person;
(k) any Contract for the past, present or future sale or transfer of any material portion of the Subsidiary. True and correct copies assets or business of Angionetics;
(l) any Contract for the acquisition of the business or share capital of another Person;
(m) any Contract, including any letter of intent, memorandum of understanding or other similar document in the past twelve months (i) with any representative of any corporation or corporations regarding the merger of Angionetics with or into any such corporation or corporations, (ii) with any representative of any corporation, partnership, association or other business entity or any individual regarding the sale, conveyance or disposition of all Scheduled or substantially all of the assets of Angionetics or a transaction or series of related transactions in which more than fifty percent (50%) of the voting power of Angionetics would be disposed of, or (iii) regarding any other form of liquidation, dissolution or winding up of Angionetics.
(n) any Contract relating to the formation, creation, operation, management, or control of a joint venture, partnership, or other similar arrangement with one or more Persons;
(o) any referral, affiliate marketing, joint marketing, or similar Contract;
(p) any Contract or plan for which any benefits will be increased, calculated or accelerated, by the occurrence the Transaction (either alone or upon the occurrence of additional or subsequent events);
(q) any Contracts have been between Angionetics and any of its Affiliates (collectively, the “Intercompany Agreements”); or
(r) any settlement agreement. Each of the Contracts required to be made available to ▇▇▇▇▇ Investor under this Section (each, a “Material Contract”) is a valid and Advercomm. All binding agreement of the Scheduled Contracts are Angionetics and Cardium, and is in full force and effect and constitute legalin accordance with its terms. Angionetics is not in default or material breach under the terms of any Material Contract, valid and binding obligations nor will the consummation of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract Transaction or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the other transactions contemplated by this Agreement give rise to any such default or require material breach. Cardium is not in default or material breach under the terms of any third Material Contract, nor will the consummation of the Transaction or any other transactions contemplated by this Agreement give rise to any such default or material breach. To the Knowledge of Cardium and to the Knowledge of Angionetics, no other party consentsto any Material Contract is in material default or breach of such Material Contract.
Appears in 1 contract
Sources: Share Purchase Agreement (Taxus Cardium Pharmaceuticals Group Inc.)
Contracts. Interactive and (a) Section 2.14 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company or any Subsidiary are not is a party as of the date of this Agreement:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties toproviding for lease payments in excess of $10,000 per annum or having a remaining term longer than twelve (12) 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 calls for performance over a period of more than one year, nor is Interactive, (B) which involves more than the Subsidiarysum of $20,000, or (C) in which the Company has granted manufacturing rights, "most favored nation" pricing provisions or marketing or distribution rights relating to any 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 establishing a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it 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) a Security Interest on any of their assets its assets, tangible or properties intangible;
(v) any agreement concerning confidentiality or noncompetition where the Company is bound byto maintain information as confidential or not to compete;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") stockholder of the following typesCompany or any affiliate (an "Affiliate"), except for those as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Scheduled ContractsExchange Act") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary), or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)thereof;
(bviii) any Contracts pursuant agreement under which the consequences of a default or termination would reasonably be expected to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertyhave a Company Material Adverse Effect;
(cix) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) agreement which contains any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require provisions requiring the Company or any Subsidiary to maintain specified financial ratios indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or levels license of net worth or other indicia products entered into in the Ordinary Course of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhereBusiness); and
(jx) any Contracts which otherwise are material other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business.
(b) The Company has delivered to the Condition Buyer a complete and accurate copy of Interactive each agreement listed in Section 2.13 or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All Section 2.14 of the Scheduled Contracts are Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; and constitute legal, valid and binding obligations of Interactive and (iii) neither the Subsidiary andCompany nor, to the best knowledge of Interactive the Company, any other party, is in breach or violation of, or default under, any such agreement, and the Subsidiaryno event has occurred, the other parties thereto; is pending or, to the best knowledge of Interactive's and the Subsidiary's knowledgeCompany, no circumstances exist which is threatened, which, after the giving of notice, with lapse of time, or otherwise, would give rise to an Action (as defined in Section 2.13) against constitute a breach or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require Company or, to the knowledge of the Company, any third other party consentsunder such contract.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant Section 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Company Subsidiary to maintain specified financial ratios or levels is a party as of net worth or other indicia the date of financial condition;this Agreement:
(i) any Contracts 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 12 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 restrict Interactive calls for performance over a period of more than one year, (B) which involves more than the sum of $25,000, or (C) in which the Company or any Company Subsidiary has granted manufacturing rights, “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 or has agreed to purchase goods or services exclusively from freely engaging a certain party;
(iii) any agreement which, to the knowledge of the Company, establishes a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Company or any affiliate (as defined in business Rule 12b-2 under the Exchange Act) thereof (an “Affiliate”);
(viii) any agreement under which the consequences of a default or competing anywheretermination would reasonably be expected to have a Company Material Adverse Effect;
(ix) any agreement which contains any provisions requiring the Company or any Company Subsidiary to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(x) any other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business; and
(jxi) any Contracts which otherwise are material agreement, other than as contemplated by this Agreement, relating to the Condition sales of Interactive securities of the Company or any Company Subsidiary to which the Subsidiary. True and correct copies of all Scheduled Contracts have been Company or such Company Subsidiary is a party.
(b) The Company has delivered or made available to ▇▇▇▇▇ the Parent a complete and Advercomm. All accurate copy of each agreement listed in Section 2.13 of the Scheduled Contracts are Disclosure Schedule. With respect to each agreement so listed, and except as set forth in Section 2.13 of the Disclosure Schedule: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; and constitute legal, valid and binding obligations of Interactive and (iii) neither the Company nor any Company Subsidiary andnor, to the best knowledge of Interactive the Company, any other party, is in breach or violation of, or default under, any such agreement, and the Subsidiaryno event has occurred, the other parties thereto; is pending or, to the best knowledge of Interactive's and the Subsidiary's knowledgeCompany, no circumstances exist which is threatened, which, after the giving of notice, with lapse of time, or otherwise, would give rise to an Action (as defined in Section 2.13) against constitute a breach or default by Interactive or the Subsidiary in connection with any Scheduled Contract Company or any Company Subsidiary or, to the knowledge of the Company, any other party under such contract, except for any breach, violation or default thereunder; that has not had and the validity, effectiveness and continuation of all Scheduled Contracts will would not reasonably be adversely affected by the transactions contemplated by this Agreement or require any third party consentsanticipated to have a Company Material Adverse Effect.
Appears in 1 contract
Contracts. Interactive (a) Schedule 4.8(a) sets forth a true and complete list of each Contract, other than any Benefit Plan or Real Property Lease, to which one or more of the Subsidiary are not parties to, nor Acquired Companies is Interactive, the Subsidiary, a party or by which any Acquired Company or any of their its properties or assets or properties is otherwise bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretothat:
(ai) any Contracts pursuant to has not been made in the Ordinary Course of Business;
(ii) is a Contract for the provision of construction or construction management or other services related thereto which Interactive or the Subsidiary, or another party thereto, is obligated to pay contemplates receipts in excess of fifty thousand dollars ($50,000)250,000 after the date hereof;
(biii) (A) is an employment, consulting, severance, change of control or retention or similar Contract that provides for annual aggregate payments exceeding $100,000 or (B) provides for the indemnification or holding harmless of any Contracts pursuant to which Interactive officer, director or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertyemployee;
(civ) any Contracts (other than advances of expenses is an agreement that limits or purports to employees in limit the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, ability of any of the foregoingAcquired Companies or, on to the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, Knowledge of the power to direct or cause the direction Company, any key executive of any of the management policies Acquired Companies, to compete in any line of a person, whether through the ownership of stock, as trustee business or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees Person or in any geographic area or during any period of Interactive time (except with respect to the use of information pursuant to any confidentiality or the Subsidiary;
(gnon-disclosure agreement) all partnership, joint venture, shareholders' or similar Contracts with limits any Acquired Company from soliciting for employment or hiring any Person;
(hv) all Contracts that limit is an agreement providing for a joint venture (other than an Excluded Joint Venture) for which the applicable Acquired Company has not received final payment, teaming, partnership arrangement or contain restrictions on the ability other arrangement involving a sharing of Interactive profits, losses, costs or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire liabilities by any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionAcquired Companies with a third party;
(ivi) is an agreement by which one or more of the Acquired Companies grants or receives rights in or to (e.g., licenses, assignments, non-assertions, covenants not to ▇▇▇ and/or escrow agreements) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; andIntellectual Property, other than agreements relating to Commercial Software;
(jvii) is an agreement providing for the sale, acquisition or lease of any Contracts of the properties of one or more of the Acquired Companies or used in the Business in excess of $250,000;
(viii) is a mortgage, pledge, security agreement or other similar agreement with respect to any tangible or intangible property of one or more of the Acquired Companies;
(ix) is a loan agreement, credit agreement, promissory note, guaranty, letter of credit reimbursement agreement or other similar agreement;
(x) provides for the acquisition (by merger, purchase of stock or assets or otherwise) by an Acquired Company of any operating business;
(xi) is (A) a surety bond (including performance bond or bid bond) or performance guarantee or (B) an escrow arrangement;
(xii) is a Contract with any vendor, subcontractor or independent contractor for the provision of goods or services and for which otherwise are material an Acquired Company has any current or ongoing commitments or obligations and which obligate such Acquired Company to make payments in excess of $250,000 in any consecutive twelve-month period after the Closing.
(xiii) is with a Governmental Authority and contemplates receipts or expenditures in excess of $250,000 after the date hereof;
(xiv) requires an Acquired Company to purchase all or substantially all of its requirements for a particular product from a supplier;
(xv) to the Condition extent not disclosed pursuant to any of Interactive the clauses above, is an agreement that requires payments or performance during its term involving an amount in excess of $500,000 after the Subsidiary. date hereof; or
(xvi) is a commitment or agreement to enter into any of the foregoing (each of the foregoing described in this Section 4.8(a), or that should have been listed or described in this Section 4.8(a), collectively, the “Material Contracts”).
(b) True and correct complete copies of all Scheduled Material Contracts have been made available or furnished to ▇▇▇▇▇ Buyer and Advercomm. All each of the Scheduled Contracts are them is in full force and effect and constitute legalis the valid, valid binding and binding obligations enforceable obligation of Interactive and the Subsidiary applicable Acquired Company and, to the best knowledge Knowledge of Interactive and the SubsidiaryCompany, the other parties thereto; thereto in accordance with its terms. None of the Acquired Companies nor, to the best Knowledge of Interactive's and the Subsidiary's knowledgeCompany, any other Person that is a party to a Material Contract or is otherwise bound thereby is in default or breach thereunder, and, to the Knowledge of the Company, no circumstances exist which event, occurrence, condition or act exists that, with the giving of notice or the lapse of time or both, would give rise to an Action (as defined in Section 2.13) against any default, breach or by Interactive right of cancellation or modification thereunder. No party to any Material Contract has exercised any termination rights with respect thereto, and no such party has given written notice to the Subsidiary in connection with any Scheduled Contract or other party thereto of any default thereunder; and the validityunder or intent to repudiate any provision of, effectiveness and continuation any Material Contract. No Acquired Company has received written notice of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement any stop work order or require suspension of work order with respect to any third party consentsMaterial Contract that is a Contract with a customer of an Acquired Company.
Appears in 1 contract
Sources: Stock Purchase Agreement (Granite Construction Inc)
Contracts. Interactive and (a) Schedule 2.12(A) describe all of the Subsidiary are not parties to, nor is Interactive, following to which the Subsidiary, Company or any of their assets its subsidiaries is a party as of the date of this Agreement (i) that require active performance by the Company as of the date hereof, and (ii) which are material, whether active or properties bound bynot, that were entered into after January 1, 1999 and (iii) other material contracts of which the current officers of the Company are aware (without checking files or subject toSEC filings) ((i) and (ii) are collectively, any the "Company Contracts"):
(i) all agreements, contracts, agreements, notes, instruments, franchises, leases, licenses, leases or binding commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:;
(aii) any Contracts indenture, mortgage, promissory note, loan agreement or other agreement or commitment for the borrowing of money by the Company or any of its subsidiaries;
(iii) any lease, sublease or other agreement pursuant to which Interactive it is a lessee of or the Subsidiary, holds or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)operates any real or personal property owned by any third party;
(biv) any Contracts option or other executory agreement or other agreement with remaining obligations thereunder to purchase or acquire any interest in assets or property;
(v) any option or other executory agreement or other agreement with remaining obligations thereunder to sell or dispose of any interest in assets or property other than stock option agreements with employees, independent contractors and directors pursuant to the Company's stock option plans;
(vi) any contract or agreement creating a joint venture or similar arrangement by which Interactive the assets, properties, rights, or business is materially affected;
(vii) any guaranty, keepwell, makewhole or similar agreement of or with respect to the Subsidiary acquired obligations of third parties;
(viii) any agreement which restricts the right Company from doing business anywhere in the world or limits the business in which it may engage;
(ix) any agreement or arrangement under which the Company agrees to use indemnify any person or to share Tax liability of any person;
(x) any license of material Company Intellectual Property (as defined in Section 2.9 below2.14) (including use of the name of the Company or information that is material to any similar name) of or necessary in by the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (Company other than advances of expenses to employees in the ordinary course of business;
(xi) involving loansany contracts for insurance; and
(xii) any contract or agreement under which the Company has the obligation to issue or sell any security.
(b) Each Company Contract is a valid, loan agreementsbinding and enforceable obligation of the Company, debt securitiesand, mortgagesof the other party or parties thereto (except as enforceability may be limited by applicable bankruptcy, deeds insolvency, reorganization, moratorium, fraudulent transfer and similar laws of trustgeneral applicability relating to or affecting creditors' rights, security agreementsor by general equity principles, suretyships including principles of commercial reasonableness, good faith and fair dealing), and each Company Contract is in full force and effect.
(c) Neither the Company nor, to the Company's knowledge, any other party thereto, is in breach of or guarantees;default under any term of any Company Contract or has repudiated any term of any Company Contract.
(d) The Company has not received any Contracts between Interactive, on the one handwritten notice of termination or cancellation with respect to any Company Contract, and no other party to a Company Contract plans to terminate or cancel any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentssuch agreement.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or Section 4.20 of the SubsidiaryDelta Disclosure Schedule contains a true and complete list, or another party theretoas of the date hereof, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any all Contracts (other than advances Transferred Business Plans and other than any Material Contracts that are Excluded Assets) (i) to which any of expenses the Transferred DPP Companies, any of their Subsidiaries or any DPP Affiliate (in respect of the DPP Business) is a party, (ii) by which any of the Transferred DPP Companies, any of their Subsidiaries or any DPP Affiliate (in respect of the DPP Business) is bound, or (iii) pursuant to employees which the DPP Assets are bound, and that fall within any of the following categories (the “Material Contracts”); provided that, except with respect to clause (e) below, the following categories shall exclude any Contracts that are IT Assets:
(i) each material Contract with a Key Customer (other than (i) any such Contract which is terminable by a Transferred DPP Company or its Subsidiary, as applicable, without material liability, penalty or premium and (ii) purchase orders, sales orders, work orders, rebate agreements or invoices under such Contracts entered into in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(eii) each material Contract with a Key Supplier (other than (i) any deferred compensation agreementssuch Contract which is terminable by a Transferred DPP Company or its Subsidiary, bonusas applicable, pensionwithout material liability, profit sharingpenalty or premium and (ii) purchase orders, stock option and incentive plans sales orders, work orders, rebate agreements or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees invoices under such Contracts entered into in the ordinary course of Interactive or the Subsidiarybusiness);
(fiii) each material joint venture, partnership, shareholders or other similar agreement relating to the governance or rights of partners or involving an equity investment by any Contracts with DPP Share Seller (in respect of any labor union affecting employees portion of Interactive the DPP Business) or the Subsidiaryinvolving any Transferred DPP Company or any of their Subsidiaries;
(giv) all partnershipeach Contract (other than Contracts to provide contract manufacturing and development services to customers) which limits the ability of a Transferred DPP Company or any of its Subsidiaries or a DPP Affiliate (in respect of the DPP Business) to compete in any material respect in any business, joint venture, shareholders' or similar Contracts with any PersonPerson or in any geographic area or in any line of business;
(hv) all each Contract that is (i) a material DPP IT Asset or (ii) an IT Asset set forth on Section 7.15(c)(ii) of the Delta Disclosure Schedule, in each case, other than (A) Contracts that limit or contain restrictions on under which the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions amount spent in respect of the DPP Business during the twelve (12) month period ended December 31, 2012 did not exceed $1,000,000 and (B) Contracts concerning commercially available off the shelf software or hardware;
(vi) each material Transferred IP Contract, other than non-disclosure agreements, employee invention assignments, customer end user agreements, and similar agreements entered into in the ordinary course of business;
(vii) each Contract material to issue the DPP Business containing a minimum purchase requirement under which the Transferred DPP Companies or purchasetheir respective Subsidiaries purchased during the twelve (12)-month period immediately preceding December 31, redeem 2012 a minimum of $1,000,000 of goods or otherwise acquire services on an annual basis;
(viii) each Contract material to the DPP Business containing a minimum supply commitment for the Transferred DPP Companies or their respective Subsidiaries to sell during the twelve (12)-month period immediately following, or pursuant to which the Transferred DPP Companies or their respective Subsidiaries have sold during the twelve (12) month period immediately preceding, December 31, 2012 a minimum of $1,000,000 of goods or services on an annual basis;
(ix) each Contract (other than purchase orders, sales orders, work orders, rebate agreements or invoices under such Contracts entered into the ordinary course of business) containing any future capital expenditure obligations of its capital stock the Transferred DPP Companies, their respective Subsidiaries or require the Company or DPP Affiliates (in respect of the DPP Business) in respect of any Subsidiary to maintain specified financial ratios or levels single project in excess of net worth or other indicia of financial condition$1,000,000;
(i) each Contract entered into after December 31, 2012, or not yet consummated, relating to the acquisition or disposition of any Contracts business, Assets or capital stock or other equity interests of any Person (whether by merger, sale of stock, sale of Assets or otherwise) for aggregate consideration under such Contract in excess of $1,000,000 individually, other than purchases or sales of raw materials, inventory or similar Assets in the ordinary course of business, and (ii) each Contract relating to the acquisition or disposition of any business, Assets or capital stock or other equity interests of any Person (whether by merger, sale of stock, sale of Assets or otherwise) under which restrict Interactive the Transferred DPP Companies or their respective Subsidiaries will have an obligation after Closing with respect to an “earn out,” contingent purchase price, or similar contingent payment obligation or indemnification obligations (but excluding indemnification obligations with respect to any Retained Liabilities);
(xi) any lease or sublease related to (i) any Leased Real Property at which any Transferred DPP Company or any of its Subsidiaries or a DPP Affiliate (in respect of the Subsidiary from freely engaging DPP Business) currently conducts manufacturing or assembling activities or (ii) any other Leased Real Property providing for annual rents in business or competing anywhereexcess of $1,000,000; and
(jxii) any Contracts which otherwise are material Contract relating to the Condition or evidencing Indebtedness in excess of Interactive or the Subsidiary. True $1,000,000 individually.
(b) A correct and correct copies complete copy of all Scheduled Contracts have each Material Contract has been made available to ▇▇▇▇▇ Newco prior to the date hereof. Each Material Contract is valid, binding and Advercomm. All enforceable in all material respects against the Transferred DPP Company, Subsidiary of a Transferred DPP Company or DPP Affiliate party thereto and, to the Scheduled Contracts are Knowledge of Delta, the other parties thereto in accordance with its terms, in each case, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and subject, as to enforceability, to general equity principles, and, to the Knowledge of Delta, is in full force and effect effect. Except as set forth on Section 4.20(b) of the Delta Disclosure Schedule, neither the Transferred DPP Companies, their Subsidiaries or DPP Affiliates (in respect of the DPP Business) nor, to the Knowledge of Delta, any other party thereto, is in material default under or in material breach of any Material Contract (other than agreements between or among any of the Transferred DPP Companies and constitute legaltheir Subsidiaries), valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge Knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledgeDelta, no circumstances exist which event has occurred that with or without notice or lapse of time or both would give rise to an Action (as defined in Section 2.13) against constitute such a material breach or by Interactive or the Subsidiary in connection with any Scheduled Contract or any material default thereunder; and . As of the validitydate hereof, effectiveness and continuation neither Delta nor its Subsidiaries have received written notice of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement termination, cancellation or require non-renewal with respect to any third party consentsMaterial Contract.
Appears in 1 contract
Sources: Contribution Agreement (Patheon Inc)
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any Schedule 3.17 sets forth a list of their assets or properties bound by, or subject to, any all contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements permits or understandings, written or oral licenses (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees purchase orders in the ordinary course of business), to which, as of the date of this Agreement, the Company or any of its Subsidiaries is a party or is otherwise bound, of the type described below (the "Company Contracts"):
(a) involving loansall agreements or commitments by the Company or any of its Subsidiaries relating to the Company's conduct of its Medicare Part D prescription drug program, loan drug discount programs or state pharmaceutical assistance programs or for the purchase, sale or lease of supplies, goods or products 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 or which provides for annual payments to or by the Company or any of its Subsidiaries that exceed $500,000 annually;
(b) all employment agreements and all material consulting agreements, debt securities, mortgages, deeds ;
(c) all agreements under which the Company or any Subsidiary is obligated or will become obligated to make any severance payment or bonus compensation payment by reason of trust, security agreements, suretyships this Agreement or guaranteesthe consummation of the transactions contemplated by this Agreement;
(d) all agreements pursuant to which the Company or any Contracts between Interactive, on Subsidiary grants to any Person or receives from any Person any rights with respect to any Company Intellectual Property Rights;
(e) all agreements prohibiting the one hand, and Company or any of its officersSubsidiaries from freely engaging in any material business activities;
(f) all mortgages, directorsindentures, employees notes, bonds or other agreements pursuant to which the Company or any Persons that beneficially own of its Subsidiaries has incurred or guaranteed any Funded Indebtedness in excess of 10.0% of $500,000;
(g) all agreements pursuant to which the outstanding equity interest (each a "Principal Owner") of Interactive, Company or any Affiliate of its Subsidiaries has granted any Lien (other than a Permitted Lien) on any of its material properties or relative, assets;
(h) all agreements relating to the acquisition or Affiliate disposition by the Company or any of a relative, its Subsidiaries of any corporation, limited liability company, partnership or other business entity or any line of the foregoingbusiness (whether by merger, on the other; ("Affiliate" consolidation or other business combination, sale of a person means a person that directly or indirectlysecurities, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, sale of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement assets or otherwise);
(ei) agreements with any deferred compensation agreementscurrent or former officer, bonusdirector, pension, profit sharing, stock option and incentive plans stockholder or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees Affiliate of Interactive the Company or the Subsidiaryany of its Subsidiaries not otherwise listed on Schedule 3.17;
(fj) agreements relating to the acquisition by the Company or any Contracts with of its Subsidiaries of any labor union affecting employees of Interactive operating business or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with capital stock of any other Person;
(hk) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require agreements under which the Company or any Subsidiary of its Subsidiaries has made advances or loans to maintain specified financial ratios or levels of net worth or any other indicia of financial conditionPerson;
(il) agreements for the provision of goods or services involving consideration in excess of $50,000 annually or $200,000 in the aggregate over the term of the agreement;
(m) reinsurance agreements to which the Company or any Contracts which restrict Interactive of its Subsidiaries is a party;
(n) outstanding agreements of guaranty, direct or indirect, by the Subsidiary from freely engaging in business Company or competing anywhereany of its Subsidiaries related to any Funded Indebtedness; and
(jo) any Contracts which otherwise are material all partnership agreements and joint venture agreements relating to the Condition of Interactive or the Subsidiary. True Company and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All its Subsidiaries.
(p) Each Contractual Obligation of the Scheduled Contracts are in full force and effect and constitute legal, Company is a valid and binding obligations agreement of Interactive and the Subsidiary Company or its Subsidiary, as the case may be, and, to the best knowledge Company's Knowledge, of Interactive and the Subsidiary, the other parties thereto; , enforceable by the Company against the other party thereto in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting generally the enforcement of creditors' rights and subject to general principles of equity). Except as has not had and would not reasonably be expected to have a Company Material Adverse Effect, (A) neither the Company nor any of its Subsidiaries or, to Company's Knowledge, any other party to any Contractual Obligation of the Company, is in breach or violation of, or default under any such Contractual Obligation of the Company (and no event has occurred which with notice or lapse of time would constitute such breach, violation or default) and (B) neither the Company nor any of its Subsidiaries has received written notice of any such breach, violation or default under any such Contractual Obligation of the Company. The Company has made available to Parent true and complete copies of all Company Contracts, including all amendments thereto. To Company's Knowledge, each party to any of the Company's or its Subsidiaries' reinsurance agreements was, at the date each reinsurance agreement was executed and delivered, and is, currently solvent and financially capable of fulfilling its obligations thereunder. The Company has not received any written notice that any such reinsurer will not pay, or has a valid defense to the best payment of, any of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with its payments under any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentssuch reinsurance agreement.
Appears in 1 contract
Sources: Merger Agreement (Welsh Carson Anderson & Stowe Ix Lp)
Contracts. Interactive and (a) Other than Contracts with respect to which the Subsidiary are applicable Acquired Company that is party thereto will not parties tobe bound after the Closing, nor is Interactive, Schedule 4.10 of the Subsidiary, or any Sellers Disclosure Schedules sets forth a list of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") all of the following types, except for those Contracts to which any Acquired Company is a party as of the date hereof or by which its Assets are bound (the "Scheduled “Material Contracts") listed in Part 2.8 of Schedule II hereto:”):
(ai) Contracts for the future purchase, exchange, supply, storage, transmission, delivery or sale of electric energy, capacity, power, steam, water or ancillary services;
(ii) Contracts for the sale, purchase, supply, storage or transport of natural gas or other fuel supply;
(iii) Contracts for the interconnection of electric generation facilities to transmission facilities;
(iv) Contracts not otherwise described in Section 4.8(a)(i), Section 4.8(a)(ii) or Section 4.8(a)(iii) (A) for the purchase, exchange or sale of any Asset or (B) that grant a right or option to purchase, exchange or sell any Asset, in each case, other than, Contracts pursuant (x) entered into in the ordinary course of business and (y) relating to which Interactive Assets with a value of less than $2,000,000 per year with respect to any Project (other than a ▇▇▇▇ Project) or the Subsidiary, or another party thereto, is obligated $50,000 per year (with respect to pay in excess of fifty thousand dollars ($50,000any ▇▇▇▇ Project);
(bv) Contracts under which it has created, incurred, assumed or guaranteed, directly or indirectly, any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use outstanding Indebtedness, including any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business letter of Interactive or the Subsidiarycredit, or pursuant to under which Interactive it has imposed a security interest or the Subsidiary has granted to others the right to usean Encumbrance on any of its Purchased Assets, tangible or intangible, or under which otherwise relates to, its Intellectual Propertyit has extended credit to any Person;
(cvi) any outstanding agreements of guaranty, surety or indemnification (excluding indemnification provisions customarily included in Contracts (other than advances of expenses to employees entered into in the ordinary course of business) involving loans), loan agreementsdirect or indirect, debt securities, mortgages, deeds of trust, security agreements, suretyships or guaranteesby any such Acquired Company;
(dvii) any Contracts between Interactiveeach energy management, on the one handoperation and maintenance, and management or management services Contract that is material to the operation of any of its officersProject, directorsincluding each O&M Agreement;
(viii) each Contract not otherwise described in Section 4.8(a)(i), employees Section 4.8(a)(ii) or Section 4.8(a)(iii) which provides for aggregate future payments to or from any Persons that beneficially own Acquired Company in excess of 10.0% of $2,000,000 per year with respect to any Project (other than a ▇▇▇▇ Project) or $50,000 per year with respect to any ▇▇▇▇ Project, other than those that can be terminated without penalty by the outstanding equity interest applicable Acquired Company upon ninety (each a "Principal Owner"90) of Interactive, days’ notice or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise)less;
(eix) Contracts that purport to (A) limit such Acquired Company’s freedom to compete in any deferred compensation agreementsline of business with any Person or operate in any geographic area or to solicit any employee, bonuscustomer or other Person for business, pensionemployment or other purposes (excluding, profit sharingfor the avoidance of doubt, stock option and incentive plans Contracts with employees or arrangementsindividual independent contractors), hospitalization(B) obligate any Acquired Company to make a minimum amount of purchases of goods or services or for any “take or pay” obligations, medical and insurance plans(C) obligate any Acquired Company to maintain a minimum amount of inventory or goods or (D) provide a right of first offer or refusal, agreements and policiesexclusivity, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive “most favored nation” or the Subsidiarysimilar rights;
(fx) Contracts (A) providing for the acquisition or disposition of any business or division or line of business (whether by merger, purchase or sale of Equity Interests, Assets or otherwise) occurring after the Effective Date or for which any Acquired Company has any liability or obligation, (B) granting a right of first offer or right of first refusal for any line of business, Equity Interests or material Assets of any Acquired Company, or (C) pursuant to which any Acquired Company has an existing obligation to pay any amounts in respect of indemnification obligations, purchase price adjustments, earn-outs, deferred purchase price, or otherwise, in connection with any merger, consolidation or other business combination or any acquisition or disposition of a business or division or line of business or Assets;
(xi) Contracts involving the resolution, compromise or settlement of any actual or threatened action in an amount greater than $2,000,000 per year with respect to any Project (other than a ▇▇▇▇ Project) and $50,000 per year with respect to any ▇▇▇▇ Project, that have not been fully performed or that otherwise impose any continuing material nonmonetary obligations on any Acquired Company;
(xii) Contracts involving any lease or license of any Assets with a value greater than $2,000,000 per year with respect to any Project (other than a ▇▇▇▇ Project) or $50,000 per year (with respect to any ▇▇▇▇ Project) or $5,000,000 in the aggregate;
(xiii) each Property Document;
(xiv) Contracts with any labor union affecting employees of Interactive or the SubsidiaryGovernmental Authority;
(gxv) all partnershipContracts for the license of material Intellectual Property by or from any Acquired Company other than (A) Contracts for “off the shelf” software, joint venturesoftware as a service and other similar cloud-based technology Contracts, shareholders' (B) non-exclusive outbound licenses granted to customers and service providers in the ordinary course of business, (C) Contracts that include an incidental license to Intellectual Property, or similar Contracts with any Person(D) permitted use rights to confidential information in non-disclosure agreements on customary terms and entered into in the ordinary course of business;
(hxvi) all Contracts that limit any Labor Agreement, whether or contain restrictions on the ability of Interactive not an Acquired Company is a party to such agreement, pursuant to which an Acquired Company may have liability pursuant to an O&M Agreement or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionotherwise;
(ixvii) each shared facilities Contract or other Contract for the shared or joint use, operation or maintenance of any real or personal Assets;
(xviii) any Contracts which restrict Interactive Contract that is intended to benefit from or mitigate the risk of fluctuations in interest rates or the Subsidiary from freely engaging in business price or competing anywhereavailability of commodities (including power, energy, natural gas, oil, water and transmission, capacity or related ancillary services); and
(jxix) any Contracts which otherwise are material partnership, co-development, strategic alliance, joint venture or limited liability company agreements (other than the Organizational Documents of such Acquired Company).
(b) Prior to the Condition of Interactive or Effective Date, the Subsidiary. True Sellers have made available to the Buyer true, correct and correct complete copies of all Scheduled Contracts have been made available Material Contracts. Subject to ▇▇▇▇▇ and Advercomm. All the Remedies Exceptions, each of the Scheduled Material Contracts are is in full force and effect and constitute legal, constitutes a valid and binding obligations obligation of Interactive and the Subsidiary each Acquired Company party thereto and, to the best knowledge Sellers’ Knowledge, of Interactive and the Subsidiary, the other parties thereto; .
(c) (i) No such Acquired Company is in breach or default under any Material Contract to which it is a party, (ii) to such Seller’s Knowledge, no other party to any of the Material Contracts is in breach or default thereunder, (iii) to such Seller’s Knowledge, no event has occurred, and no circumstance or condition exists that (with or without notice, lapse of time or both) would, or would reasonably be expected to, (A) constitute a default by such Acquired Company or give any Person the right to exercise any remedy under any Material Contract, (B) result in a violation or breach of any of the provisions of any Material Contract, (C) give any Person the right to accelerate the maturity or performance of any grant or rights or other obligation under a Material Contract or (D) give any Person the right to cancel, terminate or modify any Material Contract, except in each case to the best extent that any such breach, default, violation or right under this clause (iii) under a Material Contract, arises from failure to obtain a Seller Approval, and (iv) such Acquired Company has performed all obligations required to be performed by it under each of Interactive's and the Subsidiary's knowledgeMaterial Contracts to which it is a party, no circumstances exist which except, in each case of clauses (i) through (iv), where such breach or default would give rise not, individually or in the aggregate, reasonably be expected to an Action be material to the Acquired Companies, taken as a whole.
(as defined in Section 2.13d) against No such Acquired Company has received any written (or by Interactive to such Seller’s Knowledge, oral) notice that any party intends to terminate, cancel, or the Subsidiary in connection with not renew any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsMaterial Contract.
Appears in 1 contract
Contracts. Interactive and (i) Section 3.14(c)(i) of the Subsidiary are not parties to, nor is Interactive, Seller Disclosure Schedule lists all licenses or Contracts to which the Subsidiary, Company or any of their assets its Subsidiaries is a party or properties by which the Company or any of its Subsidiaries is bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that Technology is material licensed to the Company or necessary in the business any of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts Subsidiaries (other than advances of expenses (A) non-exclusive software licenses or software-as-a-service agreements with respect to employees Standard Software Licenses and Open Source, (B) nondisclosure agreements entered in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and (C) licenses of Intellectual Property that are substantially similar in all material respects to those contained in any of its officersStandard Form Agreement) (collectively, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, “Inbound Licenses”). Except as set forth on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control withSection 3.14(c)(i), the first mentioned person, and "control" means Business Intellectual Property does not include any Intellectual Property material to the possession, directly or indirectly or as trustee or executor, of the power Business that is licensed to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary of its Subsidiaries from a third party.
(ii) Section 3.14(c)(ii) of the Seller Disclosure Schedule lists each license or Contract to maintain specified financial ratios which the Company or levels any of net worth its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound pursuant to which the Company or any of its Subsidiaries has granted to any Person any license under, agreed not to assert or enforce, or in which any Person has otherwise received or acquired any right (whether or not currently exercisable) or interest in, any Intellectual Property (other than (A) nondisclosure agreements entered in the ordinary course of business; (B) nonexclusive licenses to the mobile applications comprising Products to the Company’s customers entered in the ordinary course of business; and (C) access or licenses granted to Business Employees or other indicia Service Providers pursuant to Personnel Agreements without deviation) (collectively, “Outbound Licenses,” and together with the Inbound Licenses, “IP Licenses”). Neither the Company nor any of financial condition;its Subsidiaries has ever been a member of any standards-setting or similar organization, nor is any of them subject to any present or contingent obligation to grant a license under any Intellectual Property to any standards-setting or similar organization, or as a result of membership in such an organization.
(iiii) any Contracts which restrict Interactive or A true and correct copy of each IP License (that is not a Standard Software License) has been provided by the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material Seller Parties to the Condition of Interactive or the SubsidiaryBuyer Parties, including all amendments and supplements thereto. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All As of the Scheduled Contracts date of this Agreement, all IP Licenses are legal, valid, binding, enforceable, and in full force and effect (and constitute legalno notice of breach has been received by the Business Group), valid and binding obligations of Interactive and the Subsidiary andunderlying Intellectual Property for each such Contract is not subject to any outstanding injunction, judgment, order, decree or ruling. No Legal Proceeding is pending or threatened in writing, nor has any action, suit, proceeding, hearing, investigation, or charge, or any written complaint, claim, or demand been made, that challenges the legality, validity, enforceability, registration, or ownership of the underlying Intellectual Property to any such IP Licenses. To the Knowledge of Seller, no licensor under any Inbound License has ownership rights or license rights to derivative works or improvements made by or on behalf of the Business Group related to the best knowledge Intellectual Property licensed thereunder. The consummation of Interactive and the SubsidiaryTransactions will not result in a breach, modification, cancellation, termination, non-renewal, suspension of, or acceleration of any payments with respect to any IP License. Immediately following the Closing Date, the other parties thereto; Surviving Entity or Buyer will have the right to exercise all of the Business Group’s rights under such IP Licenses on terms identical to those in effect as of the date of this Agreement and to the best same extent the Business Group would have been able to had the Transactions not occurred.
(iv) The Seller Parties have made available to Parent a correct and complete copy of Interactive's and each standard form of Contract currently in effect by the Subsidiary's knowledgeBusiness Group, no circumstances exist which would give rise to an Action including (as defined in Section 2.13applicable) against each of its unmodified standard forms of: (A) employee agreement containing any arbitration agreement and assignment or by Interactive or the Subsidiary in connection with any Scheduled Contract license of Intellectual Property or any default thereunderconfidentiality provision; (B) consulting or independent contractor agreement containing any assignment or license of Intellectual Property or any confidentiality provision; and (C) confidentiality or nondisclosure agreement; (collectively, the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consents“Standard Form Agreements”).
Appears in 1 contract
Sources: Agreement and Plan of Merger and Asset Purchase (Sweetgreen, Inc.)
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant Section 2.14 of the Disclosure Schedule lists the following agreements (written or oral) to which Interactive or the Subsidiary, or another Seller is a party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") date of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;this Agreement:
(i) any Contracts agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $10,000.00 per annum or having a remaining term longer than three 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 restrict Interactive calls for performance over a period of more than one year, (B) which involves more than the sum of $10,000.00, or (C) in which the Subsidiary Seller has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any 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 freely engaging 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 it 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) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Seller (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or competing anywherecomponents in the Ordinary Course of Business);
(vi) any agreement concerning exclusivity or confidentiality;
(vii) any employment or consulting agreement;
(viii) any agreement involving any current or former officer, manager or member of the Seller;
(ix) any agreement which contains any provisions requiring the Seller to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(x) any agreement under which the Seller is restricted from selling, licensing or otherwise distributing any of its technology or products, or providing services to, customers or potential customers or any class of customers, in any geographic area, during any period of time or any segment of the market or line of business;
(xi) any agreement which would entitle any third party to receive a license or any other right to intellectual property of the Buyer or any of the Buyer’s Affiliates following the Closing; and
(jxii) any Contracts which otherwise are material other agreement (or group of related agreements) either involving more than $10,000.00 or not entered into in the Ordinary Course of Business.
(b) The Seller has delivered to the Condition Buyer a complete and accurate copy of Interactive each agreement listed in Section 2.13 or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All Section 2.14 of the Scheduled Contracts are Disclosure Schedule. Except as otherwise provided in this Agreement, with respect to each agreement so listed: (i) the agreement is legal, valid, binding and enforceable and in full force and effect subject to applicable bankruptcy, insolvency, reorganization, moratorium and constitute legalsimilar laws affecting creditors’ rights and remedies generally, valid and binding obligations subject, as to enforceability, to general principles of Interactive equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity); and (ii) neither the Subsidiary andSeller nor, to the best knowledge Knowledge of Interactive the Seller, any other party, is in breach or violation of, or default under, any such agreement, and the Subsidiaryno event has occurred, the other parties thereto; is pending or, to the best Knowledge of Interactive's and the Subsidiary's knowledgeSeller, no circumstances exist which is threatened, which, after the giving of notice, with lapse of time, or otherwise, would give rise to an Action (as defined in Section 2.13) against constitute a breach or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require Seller or, to the Knowledge of the Seller, any third other party consentsunder such agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (World Energy Solutions, Inc.)
Contracts. Interactive (a) Schedule 4.14(a) is a true and complete list, as of the Subsidiary are not parties todate of this Agreement, nor is Interactive, of all the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") Contracts of the following types, except for those types to which (1) any Seller or the "Scheduled Contracts"Chinese Joint Venture is a party (but only if such Contract primarily relates to the Business) listed in Part 2.8 or (2) any of Schedule II heretothe Assets is subject:
(ai) any Contracts collective bargaining agreement;
(ii) any Contract with any Business Employee (other than a Non-U.S. Employee) related to the terms and conditions of employment, other than a Contract on the Sellers’ standard form Contract with Business Employees related to the terms and conditions of employment previously made available to the Purchaser and other than Benefit Plans and Benefit Programs;
(iii) the Sellers’ standard form Contract under which any Business Employee (other than a Non-U.S. Employee) has any obligation to any Seller to refrain from competing with the Business or to keep information regarding the Business confidential;
(iv) any Contract pursuant to which Interactive any Seller has made or the Subsidiarywill make loans or advances, or another party theretohas incurred, or is obligated to pay incur (whether on an absolute or contingent basis), indebtedness for borrowed money or has become a guarantor or surety or pledged its credit for or otherwise become responsible for or is otherwise liable for or obligated with respect to any undertaking of another Person (except for endorsements for collection or deposit of negotiable instruments in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees transactions in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(ev) any deferred compensation agreements, bonus, pension, profit sharing, stock option Contract with (A) any Affiliate of any Seller (including any Contract between one or more Sellers and incentive plans the Chinese Joint Venture but excluding any contract with or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees relating to any Seller Plan) or (B) any officer or director of Interactive any Seller or the SubsidiaryChinese Joint Venture (other than employment agreements or similar arrangements relating to their employment);
(fvi) any Contracts Contract (including a purchase order) with any labor union affecting employees of Interactive customer or supplier with whom the Sellers or the SubsidiaryChinese Joint Venture have entered into Contracts (including purchase orders) which, in the aggregate, have or are expected to have a commitment of more than $250,000 on an annual basis;
(gvii) all any Contract involving a partnership, joint venture, shareholders' venture or similar Contracts with any Personother cooperative undertaking or other arrangement involving a sharing of profits or expenses;
(hviii) all Contracts that limit any Contract involving any non-competition or contain similar restrictions binding on any owner of the ability Business, including with respect to the geographical area of Interactive operations or scope or type of business of any owner of the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionBusiness;
(iix) any Contracts which restrict Interactive Contract for any capital expenditures or leasehold improvements involving the payment of more than $100,000;
(x) any Contract that, if terminated prior to its expiration in accordance with its terms, would reasonably be expected to have a Business Material Adverse Effect;
(xi) any Contract that imposes or evidences any Lien for borrowed money or material Lien (other than a Permitted Lien) on any of the Assets.
(xii) any consignment Contract;
(xiii) any lease with respect to Real Property or any of the other material Assets;
(xiv) any Contract to sell, lease or dispose of any Asset, in each case other than in the ordinary course of business or in connection with the matters described in Schedule 4.9(e);
(xv) any Contract for storage, processing, terminalling, delivery, shipment or transportation of Assets, including any Contract with any warehouseman, processor or bailee;
(xvi) any sales agency, sales representative, distributorship or marketing Contract;
(xvii) any other Contract providing for future payments by any Seller or the Subsidiary from freely engaging Chinese Joint Venture in business excess of $100,000 on an annual basis that cannot be terminated upon 90 days’ notice by such Seller or competing anywherethe Chinese Joint Venture (and, following the Closing, by the Purchaser) without penalty or premium; and
(jxviii) any Contracts other Contract entered into outside the ordinary course of business the absence of which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts would have been a Business Material Adverse Effect.
(b) The Sellers have made available to ▇▇▇▇▇ the Purchaser a true and Advercommcomplete copy of each Contract or form of Contract that is listed on Schedule 4.14(a) (the “Material Contracts”) (excluding Contracts that the Sellers have provided in redacted form or determined to withhold, in each case due to confidentiality restrictions or because such Contracts relate to Other Chemtura Businesses). All of Except as set forth on Schedule 4.14(b), to the Scheduled Sellers’ Knowledge, the Material Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentseffect.
Appears in 1 contract
Contracts. Interactive (a) Section 3.15(a) of the Disclosure Letter sets forth an accurate list of the following Contracts to which any Seller Company is a party or by which any Seller Company is bound that is primarily used in, or otherwise necessary for, the operation of the Business (collectively, the “Business Contracts”):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any Seller Company of an amount or value in excess of $50,000; provided, that Seller shall not be required to list any XTRAC customer Contract;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any Seller Company of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the Subsidiary are not parties ownership of, leasing of, title to, nor is Interactive, the Subsidiaryuse of, or any of their assets leasehold or properties bound by, or subject toother interest in, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral personal property (collectively, "Contracts") except personal property leases and installment and conditional sales agreements having aggregate payments of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars (less than $50,000);
(biv) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any each Contract in respect of Business Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third party for the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwiseBusiness);
(ev) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans each collective bargaining agreement and other employee compensation policies and agreements affecting employees of Interactive Contract to or the Subsidiary;
(f) any Contracts with any labor union affecting employees or other employee representative of Interactive or the Subsidiarya group of employees;
(gvi) all partnership, each joint venture, shareholders' partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or similar Contracts liabilities by any Seller Company with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any Seller Company, including, but not limited to, any exclusivity covenants, or limit the freedom of any Seller Company to engage in any line of business or to compete with any Person;
(hix) all Contracts that limit any agreement providing for indemnification by any Seller Company, other than indemnification provided to customers or contain restrictions on vendors in the ability Ordinary Course of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionBusiness;
(ix) any Contracts which restrict Interactive employment or consulting Contract with any Business Employee, or any consultant or contractor of the Subsidiary from freely engaging in business Business, other than at-will arrangements that do not include severance or competing anywhere“change of control” provisions; and
(jxi) each amendment, supplement, and modification (whether oral or written) in respect of any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled foregoing.
(b) Except as set forth in Section 3.15(b) of the Disclosure Letter, as of the date hereof, all of the Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors’ rights generally, and (ii) is subject to general principles of equity.
(c) Except as set forth in Section 3.15(c) of the Disclosure Letter, as of the date hereof, no Seller Company is in breach in any material respect of or default under (and to Sellers’ Knowledge, no event has occurred which with notice or the passage of time or both would constitute legal, valid and binding obligations a breach in any material respect of Interactive and the Subsidiary andor default under) any Business Contract nor, to the best knowledge Sellers’ Knowledge, is any other party to any such Business Contract in breach in any material respect of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsunder such Business Contract.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant Section 2.15 of the Disclosure Schedule lists the following agreements (written or oral) to which Interactive or the Subsidiary, or another Company is a party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") date of Interactivethis Agreement, except to the extent the Company has no continuing or contingent rights or obligations under any Affiliate or relative, or Affiliate of a relative, of any such agreement as the result of the foregoing, on the other; ("Affiliate" termination or expiration of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;such agreement:
(i) any Contracts agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $10,000 per annum or having a remaining term longer than 12 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) that calls for performance over a period of more than one year, (B) that involves more than the sum of $50,000, or (C) in which restrict Interactive the Company has granted manufacturing rights, "most favored nation" pricing provisions or marketing or distribution rights relating to any Customer Deliverables 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 Person;
(iii) any agreement concerning the Subsidiary from freely engaging establishment or operation of a partnership, joint venture or limited liability company, except for any such agreement with the Buyer;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Company (other than sales of Customer Deliverables in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or competing anywherecomponents in the Ordinary Course of Business);
(vi) any agreement concerning confidentiality or noncompetition;
(vii) any employment or consulting agreement;
(viii) any agreement involving (A) the Primary Shareholder or any Affiliate of the Primary Shareholder or (B) any current or former officer, director or shareholder of the Company or an Affiliate thereof;
(ix) any agreement that contains any provisions requiring the Company to indemnify any other Person (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business); and
(jx) any Contracts which otherwise are material other agreement (or group of related agreements) either involving more than $50,000 or not entered into in the Ordinary Course of Business.
(b) The Company has delivered to the Condition Buyer a complete and accurate copy of Interactive each agreement listed in Section 2.13 or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All 2.15 of the Scheduled Contracts are Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; and constitute legal, valid and binding obligations of Interactive and (iii) neither the Subsidiary andCompany nor, to the best knowledge of Interactive the Company, any other Person, is in breach or violation of, or default under, any such agreement, and the Subsidiaryno event has occurred, the other parties thereto; is pending or, to the best knowledge of Interactive's and the Subsidiary's knowledgeCompany, no circumstances exist which is threatened, that, after the giving of notice, with lapse of time, or otherwise, would give rise to an Action (as defined in Section 2.13) against constitute a breach or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require Company or, to the knowledge of the Company, any third party consentsPerson under such agreement.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts"a) The Disclosure Schedule lists all of the following typescontracts, except for those agreements or other enforceable obligations (written or verbal) to which the Company is a party or by which the Company is bound as of the date of this Agreement (the "Scheduled Company Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;):
(i) any Contracts agreement (or group of related agreements with the same party) for the lease of personal property from or to third parties providing for lease payments the remaining unpaid balance of which restrict Interactive is in excess of [*];
(ii) any agreement (or group of related agreements with the Subsidiary same party) for the purchase of products or services by the Company under which the undelivered balance of such products and services is in excess of [*];
(iii) any agreement (or group of related agreements with the same party) which involves a payment to be made to the Company in excess of [*];
(iv) any agreement for the acquisition by the Company of any operating business, whether by merger, stock purchase or asset purchase;
(v) any agreement establishing a partnership or joint venture;
(vi) any agreement (or group of related agreements with the same party) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness or under which it has imposed a Security Interest on any of its material assets, tangible or intangible, relating to the Company;
(vii) any agreement that prohibits the Company from freely engaging in business anywhere in the world;
(viii) any agreement with the Company's executive officers or competing anywheredirectors pertaining to compensation, indemnification or otherwise;
(ix) any agreement with any of the Company's non-officer employees providing annual base annual compensation at a rate in excess of [*];
(x) severance, "stay pay" or termination agreement with any officer or other employee of the Company; and
(jxi) any Contracts other agreement, contract or other obligation that is or which otherwise are would reasonably be expected to be material to the Condition operations or financial condition of Interactive the Company; provided, however, that no agreement referred to in clauses (i) through (xi) above need be disclosed unless the Company currently has, or may in the Subsidiaryfuture have, any rights or obligations thereunder. True and correct copies of all Scheduled Contracts have been CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(b) The Seller has made available to ▇▇▇▇▇ the Buyer a complete and Advercommaccurate copy of each Company Contract. All of the Scheduled Contracts are in full force and effect and constitute legal, Each Company Contract is a valid and binding obligations obligation of Interactive and the Subsidiary Company and, to the best knowledge of Interactive the Seller, of each other party thereto, except for any such failure to be valid and binding that would not reasonably be expected to result in a Company Material Adverse Effect. Neither the SubsidiaryCompany nor, the other parties thereto; to the best knowledge of Interactive's and the Subsidiary's knowledgeSeller, any other party to any Company Contract is in breach or default and, to the knowledge of the Seller, no circumstances exist which event has occurred which, with notice or lapse of time or both, would give rise constitute a breach or default under any Company Contract, except for any such breach or default that would not reasonably be expected to an Action (as defined in Section 2.13) against be material to the operations or by Interactive or financial condition of the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsCompany.
Appears in 1 contract
Contracts. Interactive and (a) Section 3.9 of the Subsidiary are not parties to, nor is Interactive, Buyer Disclosure Schedule lists the Subsidiary, following agreements (written or oral) to which the Buyer or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") Buyer Subsidiary is a party as of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 date of Schedule II heretothis Agreement:
(ai) any Contracts pursuant agreement (or group of related agreements) for the lease of personal property from or to which Interactive or the Subsidiary, or another party thereto, is obligated to pay third parties providing for lease payments in excess of fifty thousand dollars ($50,000)50,000 per annum or having a remaining term longer than six months;
(bii) any Contracts pursuant to agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which Interactive calls for performance over a period of more than one year (not including any agreement (or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 belowgroup of related agreements) or information that is material to or necessary involving, in the business aggregate, less than the sum of Interactive or $25,000), (B) which involves more than the Subsidiarysum of $50,000, or pursuant to (C) in which Interactive the Buyer or the any Buyer Subsidiary has granted manufacturing rights, "most favored nation" pricing provisions or marketing or distribution rights relating to others the right any products or territory or has agreed to use, purchase a minimum quantity of goods or which otherwise relates to, its Intellectual Propertyservices or has agreed to purchase goods or services exclusively from a certain party;
(ciii) any Contracts agreement establishing a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $50,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or stockholder of the Buyer or any Affiliate thereof;
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to have a Buyer Material Adverse Effect;
(ix) any agreement which contains any provisions requiring the Buyer or any Buyer Subsidiary to indemnify any other than advances party thereto (excluding indemnities contained in agreements for the purchase, sale or license of expenses to employees products entered into in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(jx) any Contracts other agreement (or group of related agreements) either involving more than $100,000, or which otherwise are is material to the Condition Buyer and which was not entered into in the ordinary course of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been business.
(b) The Buyer has made available to ▇▇▇▇▇ the Company a complete and Advercomm. All accurate copy of each agreement listed in Section 3.9 of the Scheduled Contracts are Buyer Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, valid, binding and in full force and effect and constitute legal, valid and binding obligations of Interactive and (ii) neither the Buyer nor any Buyer Subsidiary andnor, to the best knowledge of Interactive the Buyer, any other party, is in breach or violation of, or default under, any such agreement, and the Subsidiaryno event has occurred, the other parties thereto; is pending or, to the best knowledge of Interactive's and the Subsidiary's knowledgeBuyer, no circumstances exist which is threatened, which, after the giving of notice, with lapse of time, or otherwise, would give rise to an Action (as defined in Section 2.13) against constitute a breach or default by Interactive or the Subsidiary in connection with any Scheduled Contract Buyer or any default thereunder; and Buyer Subsidiary or, to the validityknowledge of the Buyer, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third other party consentsunder such contract.
Appears in 1 contract
Contracts. Interactive and Section 3.01(h) of the Subsidiary are not parties toCompany Letter sets forth (with specific reference to the subsection of this Section 3.01(h) to which such Contract relates, nor is Interactive, including any further subsection) a list as of the Subsidiary, date of this Agreement of:
(A) each Contract pursuant to which the Company or any of their assets its Subsidiaries has agreed not to compete with any person in any area or properties bound by, to engage in any activity or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiarybusiness, or pursuant to which Interactive any material benefit or the Subsidiary has granted right is required to others the right to usebe given or lost, or which otherwise relates toany material penalty or detriment is incurred, its Intellectual Propertyas a result of so competing or engaging;
(cB) each Contract to or by which the Company or any of its Subsidiaries is a party or bound (1) providing for exclusivity, (2) pursuant to which the Company or any of its Subsidiaries is restricted in any material respect, or (3) which after the Effective Time would restrict Parent or any of its Subsidiaries in any material respect, in each case which exclusivity or restrictions apply to the development, manufacture, marketing, franchising or distribution of their respective products or services or otherwise with respect to the operation of their respective businesses;
(C) each Contract to or by which the Company or any of its Subsidiaries is a party or bound or with respect to which the Company or any of its Subsidiaries has any material obligation with (1) any Contracts affiliate of the Company or any of its Subsidiaries, (2) any Company Personnel, (3) any union or other labor organization or (4) any affiliate of any such person (other than, in each case, (I) offer letters or employment agreements that are terminable at will by the Company or any of its Subsidiaries both without any penalty and without any obligation of the Company or any of its Subsidiaries to pay severance or other compensation or benefits (other than advances accrued base salary, accrued commissions, accrued bonuses, accrued vacation pay, accrued floating holidays and legally mandated benefits), (II) Benefit Plans and Benefit Agreements other than offer letters or employment agreements and (III) Contracts between the Company or one of expenses its Subsidiaries and any of the Company’s Subsidiaries);
(D) each Contract under which the Company or any of its Subsidiaries has incurred any indebtedness having an aggregate principal amount in excess of $250,000;
(E) each Contract to employees or by which the Company or any of its Subsidiaries is a party or bound creating or granting a Lien (including Liens upon properties or assets acquired under conditional sales, capital leases or other title retention or security devices), other than (1) Liens for taxes assessments and other governmental charges not yet due and payable, that are payable without penalty or that are being contested in good faith and for which adequate reserves have been established, (2) Liens for landlords’, carriers’, warehousemen’s, mechanics’, repairmen’s, workers’ or similar Liens incurred in the ordinary course of business, in each case for sums not yet due and payable or due but not delinquent or being contested in good faith by appropriate proceedings, (3) involving loansLiens incurred in the ordinary course of business in connection with workers’ compensation, loan agreementsunemployment insurance and other types of social security or to secure the performance of tenders, debt securitiesstatutory obligations, mortgagessurety and appeal bonds, deeds bids, leases, government contracts, performance and return of trust, security agreements, suretyships or guarantees;
money bonds and similar obligations and (d4) any Contracts between Interactive, on Liens incurred in the one hand, and any ordinary course of its officers, directors, employees or any Persons business that beneficially own are not reasonably likely to adversely interfere in excess of 10.0% a material way with the use of the outstanding equity interest properties or assets encumbered thereby (each a "Principal Owner") of Interactivecollectively, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise“Permitted Liens”);
(eF) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans each Contract to or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require by which the Company or any Subsidiary of its Subsidiaries is a party or bound (other than Benefit Plans and Benefit Agreements) containing any provisions contemplating or relating in any way to maintain specified financial ratios a “change in control” or levels similar event with respect to the Company or one or more of net worth its Subsidiaries, including provisions requiring consent or approval of, or notice to, any Governmental Entity or other indicia person in the event of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging a change in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All control of the Scheduled Contracts are in full force and Company or one or more of its Subsidiaries, or otherwise having the effect and constitute legal, valid and binding obligations of Interactive and providing that the Subsidiary and, to consummation of the best knowledge Merger or any of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require the execution, delivery or effectiveness of this Agreement will materially conflict with, result in a material violation or material breach of, or constitute a default (with or without notice or lapse of time or both) under, such Contract, or give rise under such Contract to any right of, or result in, a termination, right of first refusal, material amendment, revocation, cancelation or material acceleration of any obligation, or a loss of a material benefit or the creation of any material Lien upon any of the properties or assets of the Company, Parent or any of their respective Subsidiaries, or to any increased, guaranteed, accelerated or additional material rights or material entitlements of any person;
(G) each Contract pursuant to which the Company or any of its Subsidiaries (1) consented to or agreed not to assert rights with respect to the use or registration by a third party consentsof the trademark “Teavana” or any similar trademark or (2) has received a third party’s consent to the use or registration by the Company or any of its Subsidiaries of the trademark “Teavana” or any similar trademark;
(H) each Contract to or by which the Company or any of its Subsidiaries is a party or bound granting the other party to such Contract or a third party “most favored nation” pricing or terms that (1) applies to the Company or any of its Subsidiaries or (2) following the Effective Time, would apply to Parent or any of its Subsidiaries other than the Surviving Corporation or its Subsidiaries;
(I) each Contract containing any “non-solicitation”, “no-hire” or similar provision that restricts the Company or any of its Subsidiaries in any material respect;
(J) each Contract to or by which the Company or any of its Subsidiaries is a party or bound forming or establishing, or relating to the formation or establishment of, any joint venture (whether in partnership, limited liability company or other organizational form) or alliance or similar arrangement;
(K) each Contract to or by which the Company or any of its Subsidiaries is a party or bound with any Governmental Entity;
(L) each Contract to or by which the Company or any of its Subsidiaries is a party or bound entered into in the last five years in connection with the settlement or other resolution of any suit, claim, action, investigation or proceeding;
(M) each Contract to or by which the Company or any of its Subsidiaries is a party or bound containing any standstill provisions which in any way limit the ability of the Company or any of its Subsidiaries to acquire the securities or assets of any person;
(N) each Contract between the Company or any of its Subsidiaries and any Major Vendor, including any material terms and conditions that are in effect as of the date of this Agreement and referenced in purchase orders with any such Major Vendor (other than ordinary course terms and conditions regarding purchase price, amounts and delivery) and any written or oral commitments to purchase additional products, supplies, services or ingredients from any such Major Vendor in excess of $100,000;
(O) each Contract to or by which the Company or any of its Subsidiaries is a party or bound that contains any 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 the ordinary course of business;
(P) each Contract not otherwise disclosed under this Section 3.01(h)(i) which has aggregate future sums due to or from the Company or any of its Subsidiaries, taken as a whole, (1) during the period commencing on the date of this Agreement and ending on the 12-month anniversary of this Agreement, in excess of $500,000 or (2) of more than $1,500,000 during the life of the Contract; and
(Q) except for the Contracts disclosed above, each material Contract to or by which the Company or any of its Subsidiaries is a party or bound not made in the ordinary course of business. The Contracts of the Company or any of its Subsidiaries of the type referred to in clauses (A) through (Q) of this subsection (i) (whether in effect on the date of this Agreement or entered into following the date of this Agreement and prior to the Closing Date), together with the Franchise Agreements, are collectively referred to in this Agreement as “Specified Contracts”. The Company has made available to Parent a complete and correct copy of each of the Specified Contracts, including all amendments thereto. Each Specified Contract is in full force and effect (except for those Contracts that have expired in accordance with their terms) and is a legal, valid and binding agreement of the Company or such Subsidiary, as the case may be, and, to the knowledge of the Company, of each other party thereto, enforceable against the Company or such Subsidiary, as the case may be, and, to the knowledge of the Company, against the other party or parties thereto, in each case, in accordance with its terms. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (x) each of the Company and its Subsidiaries is not (with or without notice or lapse of time or both) in breach or default under any Specified Contract and has not waived or failed to enforce any rights or benefits thereunder (other than in the ordinary course of business), (y) no other party to any of the Specified Contracts is (with or without notice or lapse of time or both) in breach or default thereunder and (z) there has occurred no event that (with or without notice or lapse of time or both) would give to others any right of termination, material amendment or cancellation of any Specified Contract.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties Except as Previously Disclosed or as otherwise provided in this Agreement, none of Public Partnership, Private Partnership, nor any of their Subsidiaries is a party to, nor and none of the properties or assets of Public Partnership, Private Partnership or any of their Subsidiaries is Interactivebound by, any Contract (i) which, upon the Subsidiaryconsummation of the Transactions or the approval of the holders of Private Partnership Units or Public Partnership Units of the Transactions will (either alone or upon the occurrence of any additional acts or events) result in any payment (whether of severance pay or otherwise) becoming due from Public Partnership, Private Partnership, Buyer, Buyer Parent, Surviving Private Partnership, Surviving Public Partnership, or any of their assets respective Subsidiaries to any officer or properties bound byemployee thereof; (ii) which is a "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC) to be performed after the date of this Agreement; (iii) with or to a labor union or guild (including any collective bargaining agreement); (iv) (including any stock option plan, stock appreciation rights plan, restricted stock plan or stock purchase plan) any of the benefits of which will be increased, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") the vesting of the following types, except for those (benefits of which will be accelerated upon the "Scheduled Contracts") listed in Part 2.8 consummation of Schedule II hereto:
(a) any Contracts pursuant to which Interactive the Transactions or the Subsidiary, approval of the holders of Private Partnership Units or another party thereto, is obligated to pay in excess Public Partnership Units of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive the Transactions or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, value of any of the foregoing, benefits of which will be calculated on the other; ("Affiliate" basis of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement Agreement; (v) granting any material Encumbrance on any material asset of Public Partnership or require Private Partnership or any third of their Subsidiaries; (vi) that is a material contract with (A) General Partner or any of its Affiliates or (B) any current or former (to the extent that any obligations of Public Partnership or Private Partnership are outstanding under such contract) officer, director or employee of Public Partnership or Private Partnership or any of their Subsidiaries other than Previously Disclosed Compensation and Benefit Plans; (vii) under which General Partner, Public Partnership or Private Partnership or any of their Subsidiaries has borrowed or may borrow any money from, has guaranteed any borrowing by any Person, or issued or may issue any note, bond, debenture or other evidence of indebtedness to, any Person, or any other note, bond, debenture or other evidence of indebtedness of Public Partnership or Private Partnership or any of its Subsidiaries, in each case in excess of $5,000,000 individually and $15,000,000 in the aggregate; (viii) that is any material currency exchange, interest rate exchange, commodity exchange or similar contract; (ix) that is a contract for any material joint venture or similar arrangement; or (x) that is a contract that includes any noncompetition or nonsolicitation covenant or any exclusive dealing or similar arrangement that limits to any material extent the freedom of Public Partnership, Private Partnership or any of their Subsidiaries to compete (geographically or otherwise) in any line of business or will, after the Closing, so limit competition by the Public Partnership Surviving Partnership, Private Partnership Surviving Partnership or their Subsidiaries (collectively, the "SELLER MATERIAL CONTRACTS"). Each of the Seller Material Contracts is valid, binding, in full force and effect, and is enforceable against Public Partnership, Private Partnership and/or their Subsidiaries, as the case may be, in accordance with its terms. As of the date hereof, neither Public Partnership, Private Partnership nor any of their Subsidiaries has received written or oral notice of cancellation of or default under or intent to cancel or call a default under any of the Seller Material Contracts. Public Partnership, Private Partnership and each of its Subsidiaries has performed all material obligations required to be performed by it to date under the Seller Material Contracts, and to Sellers' knowledge there exists no event or condition which (with or without notice or lapse of time or both) would be a breach or a default on the part of Public Partnership, Private Partnership or any of their Subsidiaries or on the part of the other party consentsto such Seller Material Contracts.
Appears in 1 contract
Sources: Merger Agreement (Nvest Lp)
Contracts. Interactive and Except as listed or described on SCHEDULE 4.33 or any other Schedule of this Agreement (such contracts, or those which should have been listed on SCHEDULE 4.33, are herein referred to as the Subsidiary "MATERIAL CONTRACTS"), as of or on the date hereof, the Target Companies are not parties to, nor is Interactive, the Subsidiary, a party to or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral leases, agreements or other contracts or legally binding contractual rights or contractual obligations or contractual commitments (each a "CONTRACT" and collectively, the "ContractsCONTRACTS") relating to or in any way affecting the operation or ownership of the following types, except for those (the "Scheduled Contracts") listed Business that are of a type described below and no such agreements are currently in Part 2.8 of Schedule II heretonegotiation or proposed:
(a) any Contracts consulting agreement pursuant to which Interactive or the SubsidiaryTarget Company is to receive consulting services (other than consulting agreements that may be terminated by the Company on not more than 30 days notice without penalty), employment agreement, change-in-control agreement, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)collective bargaining arrangement with any labor union;
(b) any Contracts pursuant to which Interactive Contract for capital expenditures or the Subsidiary acquired the right to use any Intellectual Property (as defined acquisition or construction of fixed assets in Section 2.9 below) or information that is material to or necessary in the business excess of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property$100,000;
(c) any Contracts Contract for the purchase, maintenance or acquisition, or the sale or furnishing, of materials, supplies, merchandise, machinery, equipment, parts or other property or services (except if such Contract is made in the ordinary course of business and requires aggregate future payments of less than $100,000);
(d) any Contract, other than advances of expenses to employees trade payables in the ordinary course of business) involving loans, loan agreementsrelating to the borrowing of money, debt securitiesor the guarantee of another Person's borrowing of money, including, without limitation, any notes, mortgages, deeds indentures and other obligations, guarantees of trustperformance, security agreementsagreements and instruments for or relating to any lending or borrowing, suretyships including assumed indebtedness, other than any contract with an insurance carrier under which the Target Company is responsible for the payment of insurance premiums whether or guarantees;
(d) any Contracts between Interactive, on not such premiums are first collected by the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise)Target Company;
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans Contract granting any Person a Lien (other than Permitted Liens) on all or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees any part of Interactive or the Subsidiaryassets of the Target Company;
(f) any Contracts Contract for the cleanup, abatement or other actions in connection with Hazardous Materials (as defined in SECTION 4.21), the remediation of any labor union affecting employees existing environmental liabilities or relating to the performance of Interactive any environmental audit or the Subsidiarystudy;
(g) all partnershipany Contract granting to any Person an option or a first refusal, joint venture, shareholders' first-offer or similar Contracts with preferential right to purchase or acquire any Personmaterial assets of the Target Company;
(h) all Contracts that limit any Contract with any agent, distributor or contain restrictions on representative which is not terminable by the ability of Interactive Target Company upon ninety (90) calendar days or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionless notice without penalty;
(i) any Contracts Contract under which restrict Interactive such Target Company is (A) a lessee or the Subsidiary from freely engaging sublessee of any machinery, equipment, vehicle or other tangible personal property, or (B) a lessor of any tangible personal property owned by such Target Company, in business either case having an original purchase price or competing anywhere; andrequiring aggregate lease payments in excess of $100,000;
(j) any Contract under which the Target Company has granted or received a license or sublicense or under which it is obligated to pay or has the right to receive a royalty, license fee or similar payment, in either case which provides for payments over the life of such Contract in excess of $100,000, except such Contracts with insurance companies whereby the Target Company is acting as an insurance producer and has the right to receive any commission payments;
(k) any Contract concerning a Related Party;
(l) any Contract providing for the indemnification or holding harmless of any officer, director, employee or other Person;
(m) any Contract (A) for purchase or sale by the Target Company of any real property on which otherwise are material the Target Company conducts any aspect of the Business, (B) granting any options to lease or purchase all or any portion of the Properties, or (C) providing for labor, services or materials to the Condition Properties (including, without limitation, brokerage or management services) involving aggregate future payments of Interactive more than $100,000;
(n) any Contract limiting, restricting or prohibiting the Subsidiary. True and correct copies Target Company from conducting business anywhere in the United States or elsewhere in the world;
(o) any joint venture or partnership Contract;
(p) any lease, sublease or associated agreements relating to the leased Properties (as defined in SECTION 4.10);
(q) any Contract requiring prior notice, consent or other approval upon a change of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All control in the equity ownership of the Scheduled Contracts are Target Company, which, if amended, modified or terminated as a result of, relating to or in full force connection with a failure to provide prior notice, or gain such consent or approval, would result in a Material Adverse Effect;
(r) any Contract under which the Target Company would be considered an employee benefit plan "administrator" as such term is defined in Section 3(16) of ERISA or a "fiduciary" as such term is defined in Section 3(21) of ERISA; or
(s) any other Contract, whether or not made in the ordinary course of business, which involves future payments by the Target Company in excess of $100,000. The Target Companies and effect Partners have provided Landec or its counsel with a true and constitute legalcomplete copy of each written Material Contract and a true and complete summary of each oral Material Contract, in each case including all amendments or other modifications thereto. Except as set forth on SCHEDULE 4.33, each Material Contract is a valid and binding obligations of Interactive obligation of, and enforceable in accordance with its terms against the Subsidiary Target Company and, to the best knowledge of Interactive the Target Companies and the SubsidiaryPartners, the other parties thereto; , and is in full force and effect, subject only to bankruptcy, reorganization, receivership and other laws affecting creditors' rights generally and equitable principles. Except as set forth on SCHEDULE 4.33, the Target Companies have performed in all material respects all obligations required to be performed by them as of the date hereof and will have performed in all material respects all obligations required to be performed by them as of the Closing under each Material Contract and the Target Companies and Partners have not, nor, to the best knowledge of Interactive's the Target Companies and Partners, is any other party to any Material Contract in breach or default thereunder, and, to the Subsidiary's knowledgeknowledge of the Target Companies and Partners, there exists no circumstances exist condition which would give rise to an Action (as defined in Section 2.13) against would, with or by Interactive without the lapse of time or the Subsidiary giving of notice, or both, constitute a breach or default thereunder. The Target Companies and Partners have not been notified that any party to any Material Contract intends to cancel, terminate, not renew, or exercise an option under any Material Contract, whether in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement hereby or require any third party consentsotherwise.
Appears in 1 contract
Sources: Merger Agreement (Landec Corp \Ca\)
Contracts. Interactive and (a) Except as set forth in the Subsidiary are not parties toEmployee Benefits Schedule or on the “Contracts Schedule” attached hereto as Schedule 3.12(a) (all such Contracts required to be disclosed thereon or hereon, nor is Interactivecollectively, the Subsidiary“Company Contracts”), no Company Group Member is a party to or bound by any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretofollowing:
(ai) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, retirement or deferred compensation plan or stock option and incentive plans purchase, stock option, hospitalization insurance or arrangementssimilar plan or practice, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive whether formal or the Subsidiaryinformal;
(fii) Contract for the (A) employment of any current or former (to the extent of any ongoing Liability) officer, individual employee, director or other Person on a full-time or part-time basis (other than the hiring of employees in the Ordinary Course of Business) or (B) engagement of any current or former (to the extent of any ongoing Liability) individual consultant or individual independent contractor, in either case, that provides for (1) a payment or aggregate payments by any Company Group Member in excess of Fifty Thousand Dollars ($50,000), (2) payment of any material severance benefits not in the Ordinary Course of Business or (3) any Contracts with any labor union affecting employees change in control, retention or other payments that would be triggered solely by the consummation of Interactive or the SubsidiaryContemplated Transactions;
(giii) Contract providing for or relating to (A) the borrowing of money or incurrence of Indebtedness by any Company Group Member, (B) mortgaging, pledging or otherwise placing a Lien (other than Permitted Liens) on any Company Assets or (C) the guaranty by any Company Group Member of the indebtedness of any third party;
(iv) Contract with respect to the lending or investing of funds to or in other Persons;
(v) license (excluding license of “off-the-shelf” Software), royalty Contract or other Contract relating to any Company Proprietary Rights which individually requires a payment or aggregate payments thereunder of Fifty Thousand Dollars ($50,000) or more by or to any Company Group Member;
(vi) Contract under which any Company Group Member is lessee of or holds or operates any personal property owned by any other Person, in each case which individually requires a payment or aggregate payments thereunder of One Hundred Thousand Dollars ($100,000) or more by or to such Company Group Member;
(vii) Contract under which any Company Group Member is lessor of or permits any third party to hold or operate any property, real or personal, owned or controlled by it, in each case which individually requires a payment or aggregate payments thereunder of One Hundred Thousand Dollars ($100,000) or more by or to such Company Group Member;
(viii) Contract which prohibits any Company Group Member from freely engaging in the Business or which restrains any Company Group Member’s business activities anywhere in the world, including any Contract that requires any Company Group Member to work exclusively with any Person or to provide products or services exclusively in any geographic region;
(ix) Contract relating to the manufacture or distribution of any Company Group Member’s products or services, in each case which individually requires a payment or aggregate payments thereunder of One Hundred Thousand Dollars ($100,000) or more by or to such Company Group Member;
(x) Contract with any director, officer, manager, member, partner, direct or indirect equityholder or other insider or Affiliate of any Company Group Member;
(xi) Contract for which any Company Group Member has granted any third party any “most favored nation” or similar pricing terms;
(xii) Contract that requires any Company Group Member to purchase substantially all partnershipof its requirements of any product or service from a third party or that contains “take or pay” provisions;
(xiii) Contract for acquisitions or dispositions (in each case whether by merger, purchase or sale of Assets or Equity Interests or otherwise) by any Company Group Member of any Person (or all or substantially all of its Assets), business or line of business, (A) entered into during the period commencing on January 1, 2021 (the “Lookback Date”), and ending on the Closing Date, for consideration in excess of One Hundred Thousand Dollars ($100,000) and (B) as to which such Company Group Member has any continuing indemnification or financial obligations or rights or any other material obligation or rights;
(xiv) Contract granting to any Person an Option to purchase or acquire any Company Assets;
(xv) Contract that relates to the formation, creation or operation of any joint venture, shareholders' partnership or similar Contracts other arrangement based on the sharing or distribution of any profits, revenue, costs or Liabilities of any Company Group Member or any other Person;
(xvi) Contract with any Governmental Authority to which a Company Group Member is a party (each, a “Government Contract”);
(xvii) Contract with any Material Customers and Material Suppliers;
(xviii) collective bargaining agreement or other Contract with a Union (each a “CBA”);
(xix) Contract the performance of which is reasonably expected to require capital commitments or capital expenditures in excess of One Hundred Thousand Dollars ($100,000);
(xx) Contract by which any Company Group Member has granted a continuing power of attorney to any Person;
(hxxi) all Contracts Contract that limit contains restrictions with respect to payment of dividends or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions any other distribution in respect of or to issue or purchase, redeem or otherwise acquire any of its the capital stock or require other Equity Interests of any Company Group Member (other than the Constituent Documents of any Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionGroup Member);
(xxii) Contract pursuant to which any Company Group Member has agreed to assume, undertake, become subject to or provide an indemnity with respect to any Liability of any Person relating to Environmental Laws or otherwise not in the Ordinary Course of Business;
(xxiii) Contract that evidences performance bonds, customs bonds, surety bonds, bankers acceptances and fidelity bonds;
(xxiv) Contract with any professional employer organization, staffing agency, temporary employee agency or similar company or service;
(xxv) Contract related to any Real Property; or
(xxvi) Contract that individually requires a payment or aggregate payments thereunder of Two Hundred Fifty Thousand Dollars ($250,000) or more by or to any Company Group Member (other than those Contracts required to be disclosed or excepted pursuant to clauses (i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; andthrough (xxv) above).
(jb) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True True, complete and correct copies of the Company Contracts, together with all Scheduled Contracts amendments, exhibits, annexes or other supplements thereto, in each case, in existence as of the Closing Date, have been made available to ▇▇▇▇▇ the Purchaser. Except as specifically disclosed on the Contracts Schedule, (i) the Company Group Members have performed in all material respects the obligations required to be performed by them under the Company Contracts and Advercomm. All are not in breach of any Company Contract, (ii) no event has occurred which, with the Scheduled passage of time or the giving of notice or both, would result in a breach or default in any material respect under, or would give rise to a right of termination, cancellation or acceleration of any material right or material obligation under, any Company Contract, (iii) all such Company Contracts are in full force valid, binding and effect and constitute legal, valid and binding obligations of Interactive and enforceable against the Subsidiary applicable Company Group Member and, to the best knowledge Knowledge of Interactive and the SubsidiaryCompany, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action Persons party thereto in accordance with their respective terms (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not except that such enforceability may be adversely affected limited by the transactions contemplated Enforceability Exceptions) and (iv) no Company Group Member has received written notice of breach, termination, cancellation, nonrenewal or material modification by this Agreement or require the other party to any third party consentsCompany Contract.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) Neither the Company nor any Contracts Company Subsidiary is a party to any Contract required to be filed by the Company as a “material contract” pursuant to which Interactive or Item 601(b)(10) of Regulation S-K under the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);Securities Act that has not been so filed.
(b) Section 4.15(b) of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true and complete list, and the Company has made available to Parent true and complete copies, of each Contract, understanding or undertaking to which the Company or any Contracts of the Company Subsidiaries is a party (i) that (A) restricts the ability of the Company or the Company Subsidiaries to compete in any business or with any Person in any geographical area or (B) would, to the Knowledge of the Company, restrict in any respect the ability of Parent or any of the Parent Subsidiaries to compete in any business or with any Person in any geographical area after the Effective Time, which Contract, in each case of clauses (A) and (B), would reasonably be expected to materially limit, materially restrict or materially conflict with the business of Parent and its Subsidiaries, taken as a whole (including for purposes of such determination, the Surviving Corporation and its Subsidiaries), after the Effective Time, (ii) pursuant to which Interactive Indebtedness in excess, in the aggregate, of $15,000,000 of the Company or any Company Subsidiary is outstanding or may be incurred, other than any such Contract between or among the Company and the wholly owned Company Subsidiaries, (iii) that grants any Person other than the Company or any Company Subsidiary acquired any (A) exclusive license, supply, distribution or other rights, (B) “most favored nation” rights, (C) rights of first refusal, rights of first negotiation or similar rights, (D) exclusive rights to purchase any products of the right Company or any Company Subsidiary, (E) guaranteed availability of supply or services for a period greater than 12 months, (F) guarantee as to use production capacity or priority, (G) material rebates, (H) price guarantees for a period greater than 12 months or (I) guaranteed minimum purchase amounts expected to result in payments in excess of $10,000,000 in any Intellectual Property 12 month period, (as defined iv) relating to the formation, creation, operation, management or control of any partnership or joint venture, in Section 2.9 below) or information each case, that is material to the Company and the Company Subsidiaries, taken as a whole, (v) relating to the disposition or necessary in acquisition by the Company or any Company Subsidiaries of any business (whether by merger, sale or purchase of Interactive assets, sale or the Subsidiarypurchase of stock or equity ownership interests or otherwise), or pursuant to which Interactive the Company or any Company Subsidiary has continuing indemnification, “earn-out” or other contingent payment obligations of the Company or such Company Subsidiary, in each case, that would reasonably be expected to result in payments in excess of $15,000,000, (vi) that involves total consideration by or to the Company or any Company Subsidiary of more than $15,000,000 in any 12 month period, (vii) that involves a Company Lease that provides for a monthly rent payable by the Company or any Company Subsidiary in excess of $1,000,000, (viii) pursuant to which any material Intellectual Property is licensed by a third party to the Company or any Company Subsidiary (other than commercially available non-exclusive software licenses) or (ix) under which the consequences of a default or breach or the Subsidiary has granted early termination of which would reasonably be expected to others have a Company Material Adverse Effect. Each Contract, understanding or undertaking of the right type described in this Section 4.15(b) and each Contract required to use, or which otherwise relates to, its Intellectual Property;be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act is referred to herein as a “Material Contract”.
(c) any Contracts (other than advances of expenses to employees Except for matters which, individually or in the ordinary course aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect, (i) each Material Contract (including, for purposes of business) involving loansthis Section 4.15(c), loan agreements, debt securities, mortgages, deeds any Contract entered into after the date of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, this Agreement that would have been a Material Contract if such Contract existed on the one handdate of this Agreement) is a valid, binding and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% legally enforceable obligation of the outstanding equity interest (each a "Principal Owner") of Interactive, Company or any Affiliate or relative, or Affiliate of a relative, of any one of the foregoingCompany Subsidiaries, on as the other; ("Affiliate" case may be, and, to the Knowledge of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executorCompany, of the power to direct or cause the direction of the management policies of a personother parties thereto, whether through the ownership of stockexcept, in each case, as trustee or executorenforcement may be limited by bankruptcy, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreementsinsolvency, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' reorganization or similar Contracts with any Person;
Laws affecting creditors’ rights generally and by general principles of equity, (hii) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are each such Material Contract is in full force and effect and constitute legal(iii) none of the Company or any of the Company Subsidiaries is (with or without notice or lapse of time, valid and binding obligations of Interactive and the Subsidiary or both) in breach or default under any such Material Contract and, to the best knowledge Knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledgeCompany, no circumstances exist which would give rise other party to an Action any such Material Contract is (as defined with or without notice or lapse of time, or both) in Section 2.13) against breach or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consents.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant Section 2.15 of the Disclosure Schedule lists the following agreements (written or oral) to which Interactive or the Subsidiary, or another Seller is a party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") date of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;this Agreement:
(i) any Contracts 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 restrict Interactive calls for performance over a period of more than one year, (B) which involves more than the sum of $5,000, or (C) in which the Subsidiary Seller has granted manufacturing rights, "most favored nation" pricing provisions or marketing or distribution rights relating to any 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 freely engaging 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 it 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 Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Seller (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or competing anywherecomponents in the Ordinary Course of Business);
(vi) any agreement concerning confidentiality or noncompetition;
(vii) any employment or consulting agreement;
(viii) any agreement involving any current or former officer, director or stockholder of the Seller or an Affiliate thereof;
(ix) any agreement under which the consequences of a default or termination would reasonably be expected to have a Seller Material Adverse Effect;
(x) any agreement which contains any provisions requiring the Seller to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business); and
(jxi) any Contracts which otherwise are material other agreement (or group of related agreements) either involving more than $5,000 or not entered into in the Ordinary Course of Business.
(b) The Seller has delivered to the Condition Buyer a complete and accurate copy of Interactive each agreement listed in Section 2.13 or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All Section 2.15 of the Scheduled Contracts are Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) for those agreements to which the Seller is a party, the agreement is assignable by the Seller to the Buyer without the consent or approval of any party (except as set forth in Section 2.4 of the Disclosure Schedule) and will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; and constitute legal, valid and binding obligations of Interactive and (iii) neither the Subsidiary andSeller nor, to the best knowledge of Interactive the Seller, any other party, is in breach or violation of, or default under, any such agreement, and the Subsidiaryno event has occurred, the other parties thereto; is pending or, to the best knowledge of Interactive's and the Subsidiary's knowledgeSeller, no circumstances exist which is threatened, which, after the giving of notice, with lapse of time, or otherwise, would give rise to an Action (as defined in Section 2.13) against constitute a breach or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require Seller or, to the knowledge of the Seller, any third other party consentsunder such agreement.
Appears in 1 contract
Contracts. Interactive and (a) Sellers have been, prior to the Subsidiary date of this Agreement, provided with copies of all Contracts (whether through direct access or through access on the SEC’s web site to Contracts that constitute part of the Purchaser SEC Documents) that are not parties tomaterial to the business or operations of Purchaser. Without limiting the foregoing, nor is Interactive, Sellers have been provided with copies of all Contracts fitting the Subsidiary, following descriptions to which Purchaser or any of their assets its Subsidiaries is a party or properties bound byby which Purchaser or any of its Subsidiaries is bound:
(i) employee collective bargaining agreement or other Contract with any labor union;
(ii) covenant not to compete (other than (A) pursuant to any radius restriction contained in any lease, reciprocal easement or development, construction, operating or similar agreement and (B) any such covenant contained in any distribution agreement with a distributor, “independent operator”, “wholesaler” or “multiple”) that materially limits the conduct of the business of Purchaser as currently conducted;
(iii) (A) continuing Contract for the future purchase by Purchaser or its Subsidiaries of materials, supplies or equipment (other than purchase Contracts and orders for inventory in the Ordinary Course of Business) or (B) service or consulting Contract (other than Contracts for services in the Ordinary Course of Business) for the provision of services to Purchaser or its Subsidiaries, which has in any such case an aggregate future liability by Purchaser or its Subsidiaries to any person (other than Purchaser or one of its Subsidiaries) in excess of US$75,000 and is not terminable by Purchaser or one of its Subsidiaries by notice of not more than 90 days;
(iv) Contract under which Purchaser or one of its Subsidiaries has borrowed any money from, or subject issued any note, bond, debenture or other evidence of indebtedness to, any contractsperson (other than Purchaser or one of its Subsidiaries) or any other note, agreementsbond, notesdebenture or other evidence of indebtedness of Purchaser or one of its Subsidiaries (other than in favor of Purchaser or one of its Subsidiaries) in any such case which, instrumentsindividually, franchisesinvolves in excess of US$75,000 of indebtedness;
(v) Contract (other than intercompany relationships) under which (A) any Person (other than the Company or one of its Subsidiaries) has directly or indirectly guaranteed indebtedness, leasesliabilities or obligations by way of guarantee, licensesletter of credit or otherwise of Purchaser or one of its Subsidiaries or (B) Purchaser or one of its Subsidiaries has directly or indirectly guaranteed indebtedness, commitmentsliabilities or obligations by way of guarantee, arrangements letter of credit or understandingsotherwise of any Person, written other than Purchaser or oral another Subsidiary of Purchaser (in each case other than endorsements for the purpose of collection in the Ordinary Course of Business), in any such case which, individually, involves in excess of US$75,000 of indebtedness;
(vi) lease or similar Contract with any person (other than Purchaser or one of its Subsidiaries) under which Purchaser or one of its Subsidiaries is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any person which lease or similar Contract has an aggregate future liability in excess of US$75,000 and which is not terminable by Purchaser or one of its Subsidiaries by notice of not more than 90 days;
(vii) other Contract that has an aggregate future liability to any Person (other than Purchaser or one of its Subsidiaries) in excess of US$75,000 and is not terminable by Purchaser or one of its Subsidiaries by notice of not more than 90 days (other than purchase orders or sales orders); and
(viii) employment agreement, employment contract, special incentive agreement or severage agreement that has an aggregate future liability of Purchaser or its subsidiaries in excess of $75,000 (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000“PURCHASER EMPLOYMENT CONTRACTS”);.
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (Except as defined set forth in Section 2.9 belowSchedule 3.12(b) or information that is material to or necessary in the business of Interactive or Purchaser SEC Documents (such Contracts, together with the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control withPurchaser Employment Contracts, the first mentioned person“PURCHASER CONTRACTS”), and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Purchaser Contracts are valid, binding and in full force and effect and constitute legalare enforceable by Purchaser or the applicable Subsidiary of Purchaser in accordance with their terms (subject to applicable bankruptcy, valid insolvency, moratorium, reorganization or similar laws affecting creditors’ rights generally and binding obligations to general equitable principles), except for such failures to be valid, binding, in full force and effect or enforceable that, individually or in the aggregate, would not have a Material Adverse Effect on Purchaser. Except as set forth in Schedule 3.12(b) or in the Purchaser SEC Documents, Purchaser or the applicable Subsidiary of Interactive and the Subsidiary Purchaser is not in breach or default under any Purchaser Contract and, to the best knowledge of Interactive and Purchaser, no other party to any Purchaser Contract, as of the Subsidiarydate hereof, the other parties thereto; is in breach or default thereunder, except to the best of Interactive's and extent that such breach or default, individually or in the Subsidiary's knowledgeaggregate, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentshave a Material Adverse Effect on Purchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement (Wireless Telecom Group Inc)
Contracts. Interactive and (a) Section 3.13 of the Subsidiary are not parties to, nor is Interactive, Seller Disclosure Letter sets forth the Subsidiary, Contracts described below to which Seller or any of their assets Seller Subsidiary is a party to or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretobound:
(ai) any Contracts pursuant to which Interactive All contracts with customers of Seller or the SubsidiarySeller Subsidiaries that in the aggregate represented 80% or greater of Seller's net revenue on a consolidated basis for the fiscal year ended December 31, or another party thereto, is obligated to pay in excess 2005;
(ii) Any contract (other than this Agreement) with any affiliate of fifty thousand dollars Seller ($50,000other than the Seller Subsidiaries);
(biii) any Contracts pursuant to which Interactive Any continuing Contract for the future purchase of materials, supplies or the Subsidiary acquired the right to use any Intellectual Property equipment (as defined in Section 2.9 below) or information that is material to or necessary other than purchase contracts and orders for inventory in the ordinary course of business consistent with past practice), management, service, consulting or other similar Contract or advertising agreement or arrangement, in any such case which has an aggregate future liability to any person (other than Seller or a Seller Subsidiary) in excess of Interactive $50,000 and is not terminable by Seller or the Subsidiary, or pursuant to which Interactive or the a Seller Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertyby notice of not more than 6 months for a cost of less than $50,000;
(civ) Any Contract for the sale of any Contracts asset of Seller or a Seller Subsidiary (other than advances of expenses to employees inventory sales in the ordinary course of business) involving loansor the grant of any preferential rights to purchase any such asset or requiring the consent of any party to the transfer thereof, loan agreements, debt securities, mortgages, deeds other than any such Contract entered into in the ordinary course of trust, security agreements, suretyships or guarantees;business after the date of this Agreement and not in violation of this Agreement; or
(dv) Any other Contract that has an aggregate future liability to any Contracts between Interactive, on the one hand, and any of its officers, directors, employees person (other than Seller or any Persons that beneficially own a Seller Subsidiary) in excess of 10.0% $50,000 and is not terminable by Seller or a Seller Subsidiary by notice of not more than 6 months for a cost of less than $50,000.
(b) All contracts listed on Section 3.13 of the outstanding equity interest Seller Disclosure Letter (each a the "Principal OwnerSeller Contracts") of Interactiveare valid, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, binding and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legalare enforceable by Seller or any subsidiary of the Seller in accordance with their terms subject, valid as to enforcement, to applicable bankruptcy, insolvency, moratorium, reorganization or similar laws affecting creditors' rights generally and binding to general equitable principles, except for such failures to be valid, binding, in full force and effect or enforceable that would not reasonably be expected to have a Seller Material Adverse Effect. Seller and any subsidiary of the Seller have performed all obligations of Interactive required to be performed by them to date under the Seller Contracts, and the Subsidiary they are not in breach or default thereunder and, to the best knowledge of Interactive Seller, no other party to any Seller Contract, as of the date of this Agreement, is in breach or default thereunder, except to the extent that such breach or default would not reasonably be expected to have a Seller Material Adverse Effect. Neither the Seller nor any of its subsidiaries has received any written notice of the intention of any party to terminate any Seller Contract. Complete and correct copies of all written Seller Contracts, together with all modifications and amendments thereto, have been delivered or made available to Purchaser.
(i) The Seller Permits and any other certificates, licenses, permits, franchises, consents, orders, authorizations, approvals and similar authorizations of Seller are sufficient in all material respects for the operation of the business of Seller and the Seller Subsidiaries as currently conducted, except for any certificates, licenses, permits, franchises, consents, orders, authorizations, approvals and similar authorizations that would not reasonably be expected to have a Seller Material Adverse Effect, (ii) all such Seller Permits are validly held by Seller or a Seller Subsidiary, and Seller or any Seller Subsidiary has complied with the other parties thereto; terms and conditions of each Seller Permit held by it for use in the operation or conduct of the business, (iii) during the two years preceding the date of this Agreement, neither Seller nor any Seller Subsidiary has received written notice of any action or proceeding (a "Proceeding"), including any Proceeding before the FCC or any public utility commission or state regulatory agency, and no such Proceeding is pending, relating to the best cancelation, suspension, revocation, modification or nonrenewal of Interactive's and any such Seller Permits the Subsidiary's knowledge, no circumstances exist loss of which would give rise reasonably be expected to an Action have a Seller Material Adverse Effect and (iv) none of such Seller Permits would be subject to cancelation, suspension, modification, revocation or nonrenewal as defined in Section 2.13) against or by Interactive or a result of the Subsidiary in connection with any Scheduled Contract or any default thereunder; execution and the validity, effectiveness and continuation delivery of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require the consummation of the Transactions, except for any third party consentssuch cancelations, suspensions, modifications, revocations or nonrenewals that would not reasonably be expected to have a Seller Material Adverse Effect.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts"i) Section 2.13(e)(i) of the following typesDisclosure Schedule lists, except for those (as of the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any date hereof, all licenses or Contracts pursuant to which Interactive any Intellectual Property Rights are or have been licensed or granted to the SubsidiaryCompany or any of its subsidiaries (other than (A) with respect to Shrink-Wrap Software and Open Source Materials, (B) nondisclosure agreements, (C) nonexclusive licenses of or permissions to access commercially available Technology that is not software, under shrink wrap or click wrap agreements; (D) agreements that are ancillary to the purchase or use of equipment or materials (e.g., support and maintenance contracts); (E) licenses or releases of Intellectual Property Rights that are on a Standard Form Agreement without material deviation; (F) Personnel Agreements (as defined below); and (G) licenses for Technology that is preconfigured, preinstalled, or another party thereto, is obligated embedded on hardware or other equipment) (collectively “Inbound Licenses”). The Company has made available to pay Parent complete and accurate copies of each Contract identified or required to be identified in excess Section 2.13(e)(i) of fifty thousand dollars ($50,000);the Disclosure Schedule.
(bii) Section 2.13(e)(ii) of the Disclosure Schedule lists, as of the date hereof, each license or Contract to which the Company or any Contracts of its subsidiaries is a party, or bound by, pursuant to which Interactive any Person has been granted any license under, or the Subsidiary otherwise has received or acquired the any right to use any Intellectual Property (as defined in Section 2.9 belowwhether or not currently exercisable) or information that is material to or necessary in the business of Interactive or the Subsidiaryinterest in, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts Company IP (other than advances (A) nondisclosure agreements; (B) nonexclusive licenses or agreements to provide (on a hosted basis) to customers of expenses to employees the Company Products entered in the ordinary course of business; and (C) nonexclusive licenses of trademarks or advertising copy of the Company or any of its subsidiaries in connection with the marketing and promotion (but not resale, distribution or syndication) of the Company Products entered in the ordinary course of business) involving loans(collectively, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on “Outbound Licenses”). Neither the one handCompany nor its subsidiaries are bound by, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, no Company Owned IP owned by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth its subsidiaries is subject to, any Contract containing any covenant or other indicia provision that in any way limits or restricts the ability of financial condition;the Company to use, exploit, or, except with respect to nonexclusive licenses to use or access Company Products granted in the ordinary course of business consistent with past practices, assert or enforce, any Company Owned IP owned by the Company or any of its subsidiaries anywhere in the world.
(iiii) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been The Company has made available to ▇▇▇▇▇ Parent a complete and Advercommaccurate copy of each standard form of Contract used by the Company or any of its subsidiaries at any time in connection with its business, including (as applicable) each standard form of: (A) employee agreement containing any assignment or license of Intellectual Property Rights or any confidentiality provision; (B) consulting or independent contractor agreement containing any assignment or license of Intellectual Property Rights or any confidentiality provision; (C) confidentiality or nondisclosure agreement; (D) terms of service containing any license of or agreement to provide (on a hosted basis) Company IP in connection with the distribution or provision of Company Products; (E) author agreement containing assignment or license of Intellectual Property Rights with producers and creators of Company Content; (F) talent release containing any releases or waivers individuals’ rights and (G) agreements for the receipt of development services (collectively, the “Standard Form Agreements”). All The Company and its subsidiaries have made available to Parent each Contract that include deviations (not including common deviations to the scope of the Scheduled Contracts are Company’s and its subsidiaries’ indemnification, limitation of liability, warranty, fees or royalties or other similar commercial obligations negotiated in full force and effect and constitute legalthe ordinary course of business consistent with past practice) of material terms from the corresponding Standard Form Agreement made available to Parent, valid and binding obligations of Interactive and including any agreement with an employee, consultant or independent contractor in which the Subsidiary andemployee, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined consultant or independent contractor expressly reserved or retained rights in Section 2.13) against any Intellectual Property Rights incorporated into or by Interactive or the Subsidiary used in connection with any Scheduled Contract Company Product or otherwise related to the business of the Company or any default thereunder; of its subsidiaries.
(iv) Section 2.13(e)(iv) of the Disclosure Schedule is an accurate list and summary, as of the validitydate hereof, effectiveness and continuation of all Scheduled Contracts will not be adversely affected royalties, commissions, guild payments and other similar amounts payable by the transactions contemplated by this Agreement Company or require any of its subsidiaries to any other Person (other than sales commissions paid to employees according to the standard commissions plan of the Company or any of its subsidiaries) upon or for the use, sale, provision or distribution of any Company Product or the use of any Company IP. The Company has paid all necessary royalties, dues, fees and other payment required to be made and due to any third party consentsin connection with the creation, performance or distribution of any Company Content.
Appears in 1 contract
Sources: Merger Agreement (Linkedin Corp)
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any Except for contracts, agreements, notes, instruments, franchisescommitments, leases, licenses, commitments, arrangements or understandings, written or oral plans and agreements (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts"i) listed in Part 2.8 SCHEDULE 4.12 and leases set forth on SCHEDULE 4.09 attached hereto, or (ii) entered into in the securities business conducted by the Company or any of Schedule II heretoits Subsidiaries, neither the Company nor any of its Principal Subsidiaries is a party to or subject to:
(a) any Contracts pursuant to which Interactive collective bargaining or the Subsidiarylike, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)any contract or agreement with any labor union;
(b) any Contracts pursuant to which Interactive contract or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) agreement concerning a partnership or information that is material to joint venture with one or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertymore Persons;
(c) any Contracts non-competition agreement or other contract or agreement containing covenants limiting the Company's or any of its Principal Subsidiaries' freedom to compete in any line of business or in any location or with any Person;
(other than advances d) any note or bond issued by the Company or any Subsidiary, any loan agreement, indenture, or debenture, or any document or agreement evidencing a capitalized lease obligation in excess of expenses $250,000 owed to employees any Person;
(e) any agreement of guaranty (except for guarantees constituting endorsements in the ordinary course of business) involving loans), loan agreementsindemnification, debt securitiesor other similar commitment with respect to the obligations or liabilities of any other Person (other than lawful indemnification provisions contained in the Charters and By-Laws of the Company and its Subsidiaries, mortgages, deeds or any indemnification or guaranty in favor of trust, security agreements, suretyships the Company or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwiseSubsidiaries);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees agreement (other than an employment contract) which is not terminable by the Company or a Subsidiary without penalty upon not less than sixty (60) days notice and which entails an aggregate commitment of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary in excess of $250,000; provided, however, that this Section 4.12(f) shall not be deemed to maintain specified financial ratios apply to or levels require disclosure of net worth any contract or other indicia of financial condition;
agreement (i) between the Company and one of its Subsidiaries or between any Contracts two Subsidiaries of the Company, or (ii) which restrict Interactive will terminate at Closing with no liability thereafter of the Company or any of its Subsidiaries. Except as listed in SCHEDULE 4.12, none of the Company or any Principal Subsidiary of the Company, is in default under any such contract, commitment, plan, lease, license or agreement listed on SCHEDULE 4.12 (a "default" being defined for purposes hereof as an actual default or event of default or the Subsidiary from freely engaging in business existence of any fact or competing anywhere; and
(j) any Contracts circumstance which otherwise are material to would, upon receipt of notice or passage of time, or both, constitute a default), except where such default would neither significantly interfere with the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All ability of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract Company or any default thereunder; of its Principal Subsidiaries to conduct their respective businesses substantially as now conducted nor significantly diminish the value of the Company and the validityits Subsidiaries, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentstaken as a whole.
Appears in 1 contract
Sources: Contribution Agreement (Freedom Securiteis Corp /De/)
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or SCHEDULE 2.9 lists any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") not otherwise listed in Part 2.8 of Schedule II heretoon any other schedule:
(a) any Contracts pursuant to Each contract or commitment which Interactive or the Subsidiarycreates an obligation, or another party theretoa right to receive payment, is obligated to pay on the part of the Acquired Entities in excess of fifty thousand dollars $50,000 and not described in clauses ($50,000)b) through (k) below;
(b) Each written debt instrument, including, without limitation, any Contracts pursuant to which Interactive loan agreement, line of credit, promissory note, security agreement or the Subsidiary acquired the right to use any Intellectual Property (as defined other evidence of indebtedness, where an Acquired Entity is a lender, borrower or guarantor, in Section 2.9 below) or information that is material to or necessary a principal amount in the business excess of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property$100,000;
(c) Each written contract or commitment restricting an Acquired Entity from engaging in any Contracts line of business;
(d) Each written contract to which any Acquired Entity is a party which contains a provision relating to a change in control of such Acquired Entity that (i) permits the other than advances party thereto to modify in any material respect or to terminate such contract or (ii) requires notice to such other party of expenses such change in control of such Acquired Entity;
(e) Each written contract or commitment in excess of $50,000 to employees which any Acquired Entity is a party for any charitable contribution;
(f) Each written joint venture or partnership agreement to which any Acquired Entity is a party;
(g) Each written distributorship, sales agency, sales representative, reseller or marketing, value added reseller, original equipment manufacturing, technology transfer, source code license or other license or other agreement containing the right to sublicense software and/or technology, in each case, to which any Acquired Entity is a party;
(h) Each written agreement in excess of $50,000 to which any Acquired Entity is a party with respect to any assignment, discounting or reduction of any receivables of such Acquired Entity;
(i) Each agreement, option or commitment or right with, or held by, any third party to acquire any assets or properties, of any Acquired Entity, having a value in excess of $50,000, except for contracts for the sale of inventory, machinery or equipment in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(dj) Each written employment or consulting contract entered into by any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own Acquired Entity which is currently in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhereeffect; and
(jk) Each supply agreement to which any Contracts which otherwise are Acquired Entity is a party that such Acquired Entity could not readily replace without a material impact on such Acquired Entity. Except as set forth in SCHEDULE 2.9, (i) to the Condition Best Knowledge of Interactive Diomed, there are no oral contracts or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All commitments of the Scheduled Contracts types described in this Section 2.9 which create an obligation on the part of any Acquired Entity which are individually in full force excess of $50,000 or in the aggregate in excess of $100,000, (ii) there are no contracts or commitments between any Acquired Entity and effect any Affiliate that is not listed on any other schedule, (iii) there are no contracts, commitments or arrangements between any Acquired Entity and constitute legalany employee which require the payment of any compensation upon the occurrence of change in control of such Acquired Entity, valid and binding obligations of Interactive and the Subsidiary and(iv) there are no contracts or arrangements to which any Acquired Entity is a party, to the best knowledge of Interactive and the Subsidiaryexcept this Agreement, which require notice to, the consent of, or other parties thereto; than with respect to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary services provided in connection with the Merger, any Scheduled Contract payment of any compensation (whether as a penalty, liquidated damages or otherwise) to any party with respect to the Merger or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement hereby or require in the event of the termination of such contract or arrangement on or following the Effective Time, (v) there are no contracts to which any third Acquired Entity is a party consentswhich would create rights in any Person against Parent or any of its Affiliates (other than rights against the Acquired Entities and as in effect on the Closing Date) and (vi) Diomed has been duly authorized to enter into each of the contracts listed in SCHEDULE 2.9 and each of the contracts listed in SCHEDULE 2.9 is binding and enforceable in accordance with its terms.
Appears in 1 contract
Contracts. Interactive (a) Purchaser has been, prior to the date of this Agreement, provided with copies of all Contracts that are material to the business or operations of the Company and its Subsidiaries. Without limiting the Subsidiary are not parties toforegoing, nor is Interactive, Purchaser has been provided with copies of all Contracts fitting the Subsidiary, following descriptions to which the Company or any of their assets its Subsidiaries is a party or properties bound by, by which the Company or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretoits Subsidiaries is bound:
(ai) employee collective bargaining agreement or other Contract with any Contracts pursuant to which Interactive labor union or works agreement with the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars works council ($50,000Betriebsvereinbarung);
(bii) covenant not to compete (other than (A) pursuant to any radius restriction contained in any lease, reciprocal easement or development, construction, operating or similar agreement and (B) any Contracts pursuant to which Interactive such covenant contained in any distribution agreement with a distributor, "independent operator", "wholesaler" or "multiple") that materially limits the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in conduct of the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual PropertyCompany as currently conducted;
(ciii) any Contracts (A) continuing Contract for the future purchase by the Company or its Subsidiaries of materials, supplies or equipment (other than advances of expenses to employees purchase Contracts and orders for inventory in the ordinary course Ordinary Course of businessBusiness) involving loansor (B) service or consulting Contract (other than Contracts for services in the Ordinary Course of Business) for the provision of services to the Company or its Subsidiaries, loan agreements, debt securities, mortgages, deeds which has in any such case an aggregate future liability by the Company or its Subsidiaries to any person (other than the Company or one of trust, security agreements, suretyships its Subsidiaries) in excess of (Euro) 65,000 and is not terminable by the Company or guaranteesone of its Subsidiaries by notice of not more than 90 days;
(div) any Contracts between Interactive, on Contract under which the Company or one hand, and any of its officersSubsidiaries has borrowed any money from, directorsor issued any note, employees bond, debenture or other evidence of indebtedness to, any person (other than the Company or one of its Subsidiaries) or any Persons that beneficially own other note, bond, debenture or other evidence of indebtedness of the Company or one of its Subsidiaries (other than in favor of the Company or one of its Subsidiaries) in any such case which, individually, involves in excess of 10.0% (Euro) 65,000 of indebtedness;
(v) Contract (other than intercompany relationships) under which (A) any Person (other than the outstanding equity interest (each a "Principal Owner"Company or one of its Subsidiaries) of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, has directly or indirectly guaranteed indebtedness, liabilities or as trustee obligations by way of guarantee (Garantie, Burgschaft), letter of credit (Patronatserklarung) or executor, otherwise of the power to direct Company or cause one of its Subsidiaries or (B) the direction Company or one of its Subsidiaries has directly or indirectly guaranteed indebtedness, liabilities or obligations by way of guarantee (Garantie, Burgschaft), letter of credit (Patronatserklarung) or otherwise of any Person, other than the Company or another Subsidiary of the management policies Company (in each case other than endorsements for the purpose of a personcollection in the Ordinary Course of Business), whether through in any such case which, individually, involves in excess of (Euro) 65,000 of indebtedness;
(vi) lease or similar Contract with any Person (other than the ownership Company or one of stockits Subsidiaries) under which the Company or one of its Subsidiaries is lessee of, as trustee or executorholds or uses, any machinery, equipment, vehicle or other tangible personal property owned by contract any Person which lease or credit arrangement similar Contract has an aggregate future liability in excess of (Euro) 65,000 and which is not terminable by the Company or otherwiseone of its Subsidiaries by notice of not more than 90 days;
(vii) other Contract that has an aggregate future liability to any Person (other than the Company or one of its Subsidiaries) in excess of (Euro) 65,000 and is not terminable by the Company or one of its Subsidiaries by notice of not more than 90 days (other than purchase orders or sales orders);
(eviii) any deferred compensation agreementsemployment agreement, bonusemployment contract, pension, profit sharing, stock option and special incentive plans agreement or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees agreement that has an aggregate future liability of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels its Subsidiaries in excess of net worth or other indicia of financial condition;
(iEuro) any Contracts which restrict Interactive or 65,000 (collectively, the Subsidiary from freely engaging in business or competing anywhere"EMPLOYMENT CONTRACTS"); and
(jix) any Contracts employment agreement and employment contract that has an aggregate future liability of the Company or its Subsidiaries of (Euro) 65,000 or less and which otherwise are material to not substantially in the Condition form of Interactive or the Subsidiary. True and correct standard employment contract of the Company, copies of which have heretofore been provided to Purchaser.
(b) Except as set forth in Schedule 2.11(b) (such Contracts, together with the Employment Contracts, the "COMPANY CONTRACTS"), all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Company Contracts are valid, binding and in full force and effect and constitute legalare enforceable by the Company or the applicable Subsidiary of the Company in accordance with their terms (subject to applicable bankruptcy, valid insolvency, moratorium, reorganization or similar laws affecting creditors' rights generally and binding obligations to general equitable principles), except for such failures to be valid, binding, in full force and effect or enforceable that, individually or in the aggregate, would not have a Material Adverse Effect on the Company. Except as set forth in Schedule 2.11(b), the Company or the applicable Subsidiary of Interactive and the Subsidiary Company is not in breach or default under any Company Contract and, to the best knowledge of Interactive and Sellers, no other party to any Company Contract, as of the Subsidiarydate hereof, the other parties thereto; is in breach or default thereunder, except to the best of Interactive's and extent that such breach or default, individually or in the Subsidiary's knowledgeaggregate, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or not have a Material Adverse Effect on the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsCompany.
Appears in 1 contract
Sources: Stock Purchase Agreement (Wireless Telecom Group Inc)
Contracts. Interactive and (a) Except as set forth in Schedule 4.9, neither the Seller nor any Seller Subsidiary are not parties tois a party to or bound by any agreement or contract, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, whether written or oral (collectivelyoral, "Contracts") of the following typestypes that involve the Business, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive Transferred Assets, the Assumed Liabilities, or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% Buyer's share of the outstanding equity interest (each a "Principal Owner") of Interactive, Shared Liabilities nor are any such agreements or any Affiliate contracts presently being negotiated or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;discussed:
(i) Any contract, lease, agreement, plan or arrangement involving commitments to others to make capital expenditures or purchases or sales involving $50,000 or more in any Contracts one case or $100,000 in the aggregate in any period of twelve consecutive months which restrict Interactive are not cancelable by the Seller or the Subsidiary from freely engaging in business or competing anywhere; andSeller Subsidiaries without penalty on less than 90-days prior written notice;
(jii) Any contract, lease, agreement, plan or arrangement relating to any Contracts direct or indirect indebtedness for borrowed money (including loan agreements, lease-purchase arrangements, guarantees, agreements to purchase goods or services or to supply funds or other undertakings on which otherwise others rely in extending credit), or any conditional sales contracts, chattel mortgages, equipment lease agreements and other security arrangements with respect to personal property with an obligation in excess of $50,000 in any one case or $100,000 in the aggregate in any period of twelve consecutive months which are material not cancelable by the Seller or the Seller Subsidiaries, without penalty, on less than 90-days prior written notice;
(iii) Any contract, lease agreement, plan or arrangement between the Division and the Seller or any Seller Subsidiary or any Affiliate of the Seller or any Seller Subsidiary or related party in their respective individual capacities;
(iv) Any employment, consulting or management services contract or any confidentiality or proprietary rights agreements with any employee of the Seller or any Seller Subsidiary or any third party;
(v) Any contract containing covenants limiting the freedom of the Seller or any Seller Subsidiary to compete in any line of business with any person or in any area or territory;
(vi) Any license agreement, either as licensor or licensee, or any other agreement or arrangement of any type relating to any patent, trademark or trade name or other Transferred Asset;
(vii) Any contract, agreement or arrangement of any kind whatsoever, whether exclusive or otherwise, with any sales agent, representative, franchisee or distributor;
(viii) Any contract or arrangement of any kind whatsoever which requires the payment of royalties;
(ix) Any prime contract with any government or any agency or instrumentality thereof;
(x) Any contract with respect to the Condition discharge or removal of Interactive effluent, wastes or pollutants of any nature;
(xi) Any joint venture, partnership or other cooperative arrangement or any other such agreement involving a sharing of profits; or
(xii) Any other legally binding contract, lease, agreement, plan or arrangement not of the type covered by any of the other items of this Section 4.9 involving money or property having an obligation in excess of $50,000 in any one case or $100,000 in the aggregate in any period of twelve consecutive months which are not cancelable by the Seller or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legalSeller Subsidiaries, valid and binding obligations of Interactive and the Subsidiary andwithout penalty, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentson less than 90-days prior written notice.
Appears in 1 contract
Contracts. Interactive (a) Section 3.12(a) of the Company Disclosure Schedule lists (under the appropriate subsection) each of the following written or material oral contracts and agreements of the Company or any Subsidiary are not parties toas of the date hereof (such contracts and agreements, nor along with all agreements listed on Section 3.14(c) of the Company Disclosure Schedule, being the “Material Contracts”):
(i) each contract and agreement for the purchase or lease of personal property with any supplier or for the furnishing of services to the Company or any Subsidiary with payments greater than $25,000 per year;
(ii) all broker, exclusive dealing or exclusivity, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion or representative, research, marketing, consulting and advertising contracts and agreements to which the Company or any Subsidiary is Interactivea party or any other contract that compensates any person based on any sales by the Company or any Subsidiary under which, in each case, the Company and its Subsidiaries has paid or received monies in excess of $25,000 since January 1, 2009;
(iii) all leases and subleases of real property;
(iv) all contracts and agreements relating to indebtedness for borrowed money other than trade indebtedness of the Company or any Subsidiary, including any contracts and agreements in which the Company or any Subsidiary is a guarantor of indebtedness for borrowed money;
(v) all contracts and agreements with any Governmental Entity to which the Company or any Subsidiary is a party;
(vi) all contracts containing confidentiality requirements (including all nondisclosure agreements), other than agreements (A) between the Company or any of their assets its Subsidiaries and current or properties bound byformer directors, officers, employees, consultants or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") independent contractors of the following typesCompany or its Subsidiaries, except for those in their capacity as such or (B) entered into with customers of the "Scheduled Contracts") listed in Part 2.8 Company or any of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees Subsidiaries in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(dvii) all contracts and agreements between or among the Company or any Contracts between InteractiveSubsidiary thereof, on the one hand, and any stockholder of its officersthe Company or, directorsto the knowledge of the Company, employees any Subsidiary or any Persons that beneficially own in excess affiliate of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoingsuch person, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise)other hand;
(eviii) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies all contracts and agreements affecting employees relating to the voting and any rights or obligations of Interactive a stockholder of the Company or the any Subsidiary;
(fix) all contracts to manufacture for, supply to or distribute to any Contracts with third party any labor union affecting employees products or components under which the Company or its Subsidiaries have paid or received monies in excess of Interactive $25,000 since January 1, 2009;
(x) all contracts regarding the acquisition, issuance or transfer of any securities of a third party;
(xi) all contracts providing for indemnification of any officer, director, employee or agent of the Company or any Subsidiary;
(gxii) all partnershipcontracts related to or regarding the performance of consulting, joint ventureadvisory or other services or work of any type by any third party under which the Company or its Subsidiaries have paid monies in excess of $25,000 since January 1, shareholders' or similar Contracts with any Person2009;
(hxiii) all Contracts that limit or contain restrictions on the ability any agreement of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios that is terminable upon or levels prohibits a change of net worth ownership or other indicia control of financial conditionthe Company;
(ixiv) all other contracts and agreements not made in the ordinary course of business, that contemplate an exchange of consideration with an aggregate value greater than $25,000;
(xv) all contracts and agreements relating to the disposition or acquisition by the Company or any of its Subsidiaries, with obligations remaining to be performed (or liabilities continuing) after the date of this Agreement, of any business or any material amount of assets not in the ordinary course of business;
(xvi) any Contracts joint venture or partnership contract, arrangement or commitment, any contract, arrangement or commitment relating to a limited liability company, or any other agreement which restrict Interactive has involved, or the Subsidiary from freely engaging in is reasonably expected to involve, a sharing of revenues, profits, cash flows, expenses or losses by Company with any other party;
(xvii) any agreement pursuant to which Company has acquired a business or competing anywhereentity, or assets of a business or entity, whether by way of merger, consolidation, purchase of stock, purchase of assets, license or otherwise (collectively, the “Prior Merger Agreements”), including disclosure of (1) any amounts remaining payable by the Company or any Subsidiary thereof arising from current or contingent obligations to make payments in respect of the business, entity or assets acquired and (2) whether any claims have been made in respect of indemnification obligations of any party to such agreement and, to the knowledge of the Company, whether any grounds for such claims exist;
(xviii) all contracts and agreements to provide source code or other technology of any Company Intellectual Property (as defined below) (“Source Materials”) into any escrow or to any third party (under any circumstances) for any product or technology that is material to the Company and its Subsidiaries taken as a whole;
(xix) any settlement agreement entered into within five (5) years prior to the date of this Agreement other than releases immaterial in nature or amount entered into by the Company or its Subsidiaries; and
(jxx) any Contracts which otherwise are other contract, arrangement or commitment that is material to Company’s business, its financial condition, its Intellectual Property rights or technology or any of its current or proposed products or services.
(b) Each Material Contract (i) is valid and binding on the Condition of Interactive Company or a Subsidiary, as the Subsidiary. True case may be, and, on the other parties thereto, and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ is in full force and Advercomm. All effect, and (ii) upon consummation of the Scheduled Contracts are transactions contemplated by this Agreement, shall continue in full force and effect and constitute legalwithout penalty or other adverse consequence. Neither the Company nor any Subsidiary is in breach or violation of, valid and binding obligations of Interactive and the Subsidiary or default under, any Material Contract and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledgeCompany, no circumstances exist which would give rise other party to an Action any Material Contract is in breach or violation thereof or default thereunder.
(as defined c) The Company has made available to Parent (or its designated advisors) accurate and complete copies of all Material Contracts identified in Section 2.133.12(a) against or by Interactive or of the Subsidiary Company Disclosure Schedule, including all amendments thereto. Section 3.12(a) of the Company Disclosure Schedule provides an accurate description of the terms of each Material Contract that is not in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentswritten form.
Appears in 1 contract
Contracts. Interactive and As of the Subsidiary are not parties todate of this Agreement, nor is Interactive, Section 3.17 to the Subsidiary, or any of their assets or properties bound by, or subject to, any Office Depot Disclosure Schedule lists all contracts, agreements, notesguarantees, instruments, franchises, leases, licenses, commitments, arrangements leases and executory commitments (each a “Contract”) other than Office Depot Plans or understandings, written Office Depot Foreign Plans to which Office Depot or oral (collectively, "Contracts") any of its subsidiaries is a party and that fall within any of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
categories: (a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances Contracts that fall within any of expenses to employees the categories set forth in clauses (b) through (h) below) not entered into in the ordinary course of businessbusiness other than those that are not material to the business of Office Depot and its subsidiaries, taken as a whole, (b) involving loans, loan joint venture and partnership agreements, debt securities(c) Contracts containing covenants limiting, or purporting to limit, the freedom of Office Depot or its subsidiaries to compete in any line of business in any geographic area or to hire any individual or group of individuals, (d) Contracts which contain minimum purchase conditions in excess of $25,000,000 with respect to inventory purchases by Office Depot or its subsidiaries for resale, and in excess of $5,000,000 with respect to other purchase obligations by Office Depot or its subsidiaries, or Contracts that otherwise restrict or limit, or purport to restrict or limit, the purchasing relationships of Office Depot or its affiliates, (e) Contracts relating to any outstanding commitment for capital expenditures by Office Depot or its subsidiaries in excess of $15,000,000, (f) indentures, mortgages, deeds promissory notes, loan agreements or guarantees of trust, security agreements, suretyships borrowed money made by Office Depot or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own subsidiaries in excess of 10.0% $15,000,000, letters of credit issued on behalf of Office Depot or its subsidiaries or commitments for the outstanding equity interest (each a "Principal Owner") borrowing or the lending of Interactiveamounts by Office Depot or its subsidiaries in excess of $15,000,000 or providing for the creation of any charge, security interest, encumbrance or any Affiliate or relative, or Affiliate of a relative, of lien upon any of the foregoingassets of Office Depot or its subsidiaries with an aggregate value in excess of $15,000,000, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' Contracts related to the acquisition or similar Contracts with any Person;
disposition of assets or stock providing for “earn-outs” payable by Office Depot or its subsidiaries involving more than $15,000,000 in the aggregate over the term of the Contract from and after the date of this Agreement and (h) Contracts with or for the benefit of any affiliate of Office Depot or immediate family member thereof (other than subsidiaries of Office Depot) involving more than $5,000,000 in the aggregate per affiliate. All such Contracts and all Contracts that limit contracts to which Office Depot or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts subsidiaries is a party and which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material involve annual revenues to the Condition business of Interactive or the Subsidiary. True Office Depot and correct copies its subsidiaries in excess of all Scheduled Contracts have been made available to ▇▇▇▇▇ 1% of Office Depot’s consolidated annual revenues (each, a “Material Office Depot Contract”) are (assuming due authorization, execution and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, delivery by each other party thereto) valid and binding obligations of Interactive and the Subsidiary Office Depot or its subsidiaries, as applicable, and, to the best knowledge of Interactive and the SubsidiaryOffice Depot, the valid and binding obligation of each other parties party thereto; , except where the failure to be valid and binding would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on Office Depot. Neither Office Depot nor its subsidiaries nor, to the best knowledge of Interactive's and Office Depot, any other party thereto is in violation of or in default in respect of, nor has there occurred an event or condition which with the Subsidiary's knowledgepassage of time or giving of notice (or both) would constitute a default under or permit the termination of, no circumstances exist which any Material Office Depot Contract except for such violations or defaults under or terminations which, individually or in the aggregate, would give rise not reasonably be expected to an Action (as defined in Section 2.13) against have a Material Adverse Effect on Office Depot. Office Depot has not entered into any confidentiality or standstill agreements that will, by Interactive or their terms, terminate upon the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation execution of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsthe public announcement of the Transactions.
Appears in 1 contract
Sources: Merger Agreement (Office Depot Inc)
Contracts. Interactive and (a) Section 2.14 of the Disclosure Schedule lists the following agreements (written or oral) to which the Company or any Subsidiary are not is a party as of the date of this Agreement:
(i) any agreement (or group of related agreements) for the lease of personal property from or to third parties toproviding for lease payments in excess of $25,000 per annum or having a remaining term longer than 12 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 calls for performance over a period of more than one year, nor is Interactive, (B) which involves more than the Subsidiarysum of $25,000, or (C) in which the Company or any Subsidiary has granted manufacturing rights, "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 or has agreed to purchase goods or services exclusively from a certain party;
(iii) any agreement establishing a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of their assets its assets, tangible or properties bound byintangible;
(v) any agreement concerning confidentiality or noncompetition;
(vi) any employment or consulting agreement;
(vii) any agreement involving any officer, director or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") stockholder of the following typesCompany or any affiliate (an "Affiliate"), except for those as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the "Scheduled ContractsExchange Act") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary), or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)thereof;
(bviii) any Contracts pursuant agreement under which the consequences of a default or termination would reasonably be expected to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertyhave a Company Material Adverse Effect;
(cix) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) agreement which contains any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require provisions requiring the Company or any Subsidiary to maintain specified financial ratios indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or levels license of net worth or other indicia products entered into in the Ordinary Course of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhereBusiness); and
(jx) any Contracts which otherwise are material to other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the Condition Ordinary Course of Interactive Business.
(b) The Company has delivered or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ the Buyer a complete and Advercomm. All accurate copy of each agreement listed in Section 2.14 of the Scheduled Contracts are Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; and constitute legal, valid and binding obligations of Interactive and (iii) neither the Company nor any Subsidiary andnor, to the best knowledge of Interactive the Company, any other party, is in breach or violation of, or default under, any such agreement, and the Subsidiaryno event has occurred, the other parties thereto; is pending or, to the best knowledge of Interactive's and the Subsidiary's knowledgeCompany, no circumstances exist which is threatened, which, after the giving of notice, with lapse of time, or otherwise, would give rise to an Action (as defined in Section 2.13) against constitute a breach or default by Interactive or the Subsidiary in connection with any Scheduled Contract Company or any default thereunder; and Subsidiary or, to the validityknowledge of the Company, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third other party consentsunder such contract.
Appears in 1 contract
Sources: Merger Agreement (Mac Worldwide Inc)
Contracts. Interactive The Parent has disclosed and made available to the Subsidiary are not parties toCompany for review in the Due Diligence Review, nor is Interactive, Parent Reports or otherwise the Subsidiary, following material agreements (written or oral) to which the Company or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") Subsidiary is a party as of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 date of Schedule II heretothis Agreement:
(a) any Contracts pursuant agreement (or group of related agreements) for the lease of personal property from or to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)third parties;
(b) any Contracts pursuant to agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which Interactive or calls for performance over a period of more than one year, (B) which involves more than the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business sum of Interactive or the Subsidiary$5,000, or pursuant to (C) in which Interactive the Parent or the any Subsidiary has granted manufacturing rights, “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to others the right any products or territory or has agreed to use, purchase a minimum quantity of goods or which otherwise relates to, its Intellectual Propertyservices or has agreed to purchase goods or services exclusively from a certain party;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships agreement establishing a partnership or guaranteesjoint venture;
(d) any Contracts between Interactiveagreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $5,000 or under which it has imposed (or may impose) a Security Interest on the one hand, and any of its officersassets, directors, employees tangible or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise)intangible;
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans agreement concerning confidentiality or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiarynoncompetition;
(f) any Contracts with any labor union affecting employees of Interactive employment or the Subsidiaryconsulting agreement;
(g) all partnershipany agreement involving any officer, joint venture, shareholders' director or similar Contracts with stockholder of the Parent or any PersonAffiliate thereof;
(h) all Contracts that limit any agreement under which the consequences of a default or contain restrictions on the ability of Interactive or the Subsidiary termination would reasonably be expected to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionhave a Parent Material Adverse Effect;
(i) any Contracts agreement which restrict Interactive contains any provisions requiring the Parent or any Subsidiary to indemnify any other party thereto (excluding indemnities contained in agreements for the Subsidiary from freely engaging purchase, sale or license of products entered into in business or competing anywherethe Ordinary Course of Business); and
(j) any Contracts which otherwise are material to other agreement (or group of related agreements) either involving more than $5,000 or not entered into in the Condition Ordinary Course of Interactive or the SubsidiaryBusiness. True The Parent has disclosed and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ the Company for review in the Due Diligence Review, Parent Reports or otherwise a complete and Advercommaccurate copy of each agreement described herein. All of With respect to each agreement so listed: (i) the Scheduled Contracts are agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; and constitute legal, valid and binding obligations of Interactive and (iii) neither the Parent nor any Subsidiary andnor, to the best knowledge of Interactive the Parent, any other party, is in breach or violation of, or default under, any such agreement, and the Subsidiaryno event has occurred, the other parties thereto; is pending or, to the best knowledge of Interactive's and the Subsidiary's knowledgeParent, no circumstances exist which is threatened, which, after the giving of notice, with lapse of time, or otherwise, would give rise to an Action (as defined in Section 2.13) against constitute a breach or default by Interactive or the Subsidiary in connection with any Scheduled Contract Parent or any default thereunder; and Subsidiary or, to the validityknowledge of the Parent, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third other party consentsunder such contract.
Appears in 1 contract
Sources: Merger Agreement (Tactical Air Defense Services, Inc.)
Contracts. Interactive (a) Section 3.13(a) of the Company Disclosure Schedule sets forth a true and complete list of each Contract of the Subsidiary are not parties to, nor is Interactive, the Company or any Company Subsidiary, that is included within any of the following categories: (i) any Contract that materially limits the freedom of the Company, any Company Subsidiary or any of their the Company’s current or future affiliates to compete in any line of business or sell, supply or distribute any product or service, in each case, in any geographic area, or to hire any individual or group of individuals, (ii) any Contract that by its terms limits the payment of dividends or other distributions by the Company or any Company Subsidiary, (iii) any Contract that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company of any Company Subsidiary to own, operate, sell, transfer, pledge or otherwise dispose of any material amount of assets or properties bound bybusinesses, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(aiv) any Contracts pursuant to which Interactive Contract for the acquisition of a business or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information Person that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in was entered into outside the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds business and that contains ongoing material obligations of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios Company Subsidiary, (v) any divestiture or levels of net worth disposition Contract that contains ongoing indemnification or other indicia material obligations of financial condition;the Company or any Company Subsidiary, (vi) each Contract relating to indebtedness for borrowed money or the guaranty of repayment of indebtedness for borrowed money, except for any such Contract with an aggregate outstanding principal amount not exceeding $1,000,000 and which may be prepaid on not more than 30 days’ notice without the payment of any penalty, (vii) any lease, sublease or other Contract with respect to the Leased Real Property (“Lease Agreement”) involving payments by the Company or the Company Subsidiaries in excess of $2,000,000 in 2010 or any year thereafter, (viii) any Contract pursuant to which the Company or any Company Subsidiary has granted most favored nation pricing to any third party and which obligations will be effective after the date of this Agreement; (ix) any joint development Contract; (x) all Contracts, other than licenses to Commercially Available Software, pursuant to which the Company or any Company Subsidiary obtains the right or license to embed the Intellectual Property or Software of any third party into the Company Products or otherwise sells the Intellectual Property or Software of any third party pursuant to Contracts of the Company or any Company Subsidiary and the end-customer under the Company’s or a Company Subsidiary’s name; (xi) any Contract relating to the settlement of any civil, administrative or judicial proceedings that contains ongoing obligations of the Company or any Company Subsidiary; or (xii) any other “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), other than those “material contracts” described in Item 601(b)(10)(ii) of Regulation S-K of the SEC. Each Contract (A) of the type described in this Section 3.13(a), whether or not disclosed in response to this Section 3.13(a), and (B) of the type required to be disclosed in Section 3.15 of the Company Disclosure Schedule, whether or not disclosed in Section 3.15 of the Company Disclosure Schedule, is referred to herein as a “Company Material Contract.” True and complete copies of each Company Material Contract have been provided by the Company to Parent, or publicly filed with the SEC.
(i) any Contracts which restrict Interactive Each Company Material Contract is a valid, binding and enforceable obligation of the Company or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary Company Subsidiaries and, to the best knowledge of Interactive and the SubsidiaryCompany, of the other party or parties thereto; , in accordance with its terms subject to the best effect of Interactive's any applicable bankruptcy, insolvency (including, without limitation, all Laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting creditors’ rights generally and subject to the Subsidiary's knowledgeeffect of general principles of equity (regardless of whether considered in a proceeding at law or in equity); (ii) none of the execution, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against delivery or performance of this Agreement by Interactive the Company, or the Subsidiary in connection with consummation of the Offer or the Merger, will require the consent of any Scheduled party to a Company Material Contract or impair the Company’s or any default thereunder; and the validityCompany Subsidiaries’ rights, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require alter their respective obligations under, or give any third party consentsany rights of termination, amendment, payment, acceleration or cancellation of, or result in the creation of a Lien on the properties or assets of the Company or any Company Subsidiary, pursuant to any Company Material Contract; (iii) the Company and each Company Subsidiary has in all material respects performed all obligations required to be performed by it under each Company Material Contract and, to the knowledge of the Company, each other party to each Company Material Contract has in all material respects performed all obligations required to be performed by it under such Company Material Contract; (iv) none of the Company nor any Company Subsidiary has received written notice of, and the Company otherwise has no knowledge of, any violation or default under any Company Material Contract; and (v) neither the Company nor any Company Subsidiary has received any written notice from any other party to any such Company Material Contract, and the Company otherwise has no knowledge, that such party intends to terminate, or not renew, any such Company Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Sybase Inc)
Contracts. Interactive and (a) Section 3.15(a) of the Subsidiary are not parties to, nor is Interactive, Disclosure Schedule lists the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, following agreements (written or oral (collectively, "Contracts"provided that Section 3.15(a) of the following types, except for those (the "Scheduled Contracts"Disclosure Schedule sets forth all material terms and provisions of any such oral agreement)) listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another Company is a party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") date of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;this Agreement:
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; andCustomer Contracts;
(jii) any Contracts agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $5,000 per annum or having a remaining term longer than 12 months;
(iii) any agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which otherwise are material calls for performance over a period of more than one year, (B) which involves more than the sum of $5,000, or (C) in which the Company has granted “most favored nation” pricing provisions or exclusive marketing or distribution rights relating to any products or territory or have agreed to purchase a minimum quantity of goods or services (including airspace) or have agreed to purchase goods or services (including airspace) exclusively from a certain party;
(iv) any agreement concerning the Condition establishment or operation of Interactive a partnership, joint venture or limited liability company;
(v) any agreement with Oceanside or any equityholder or other Affiliates thereof;
(vi) any agreement (or group of related agreements) under which the Subsidiary. True and correct copies Company has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) or under which the Company has imposed (or may impose) a Security Interest on any of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All its assets, tangible or intangible;
(vii) any agreement for the disposition of any significant portion of the Scheduled Contracts are assets or business of the Company (other than sales of products in full force and effect and constitute legalthe Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(viii) any agreement concerning exclusivity, valid and binding obligations confidentiality, noncompetition or non-solicitation;
(ix) any employment or consulting agreement;
(x) any severance (or agreement that includes provisions for the payment of Interactive and the Subsidiary andseverance), to the best knowledge of Interactive and the Subsidiary“stay pay,” retention, the termination or similar agreement with any officer or other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action employee;
(as defined in Section 2.13xi) against any settlement agreement or by Interactive or the Subsidiary settlement-related agreement (including any agreement in connection with which any Scheduled Contract employment-related claim is settled);
(xii) any agreement involving any current or former officer, director, stockholder, manager or member of the Company or an Affiliate thereof;
(xiii) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(xiv) any agreement which contains any provisions requiring the Company to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(xv) any agreement that could reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of the Company, the Buyer or any default thereunder; subsidiary of the Buyer as currently conducted and as currently proposed to be conducted;
(xvi) any agreement under which the validityCompany is restricted from selling its products or providing services to customers, effectiveness and continuation potential customers or any class of all Scheduled Contracts will not be adversely affected customers, in any geographic area, during any period of time or any segment of the market or line of business;
(xvii) any agreement for the acquisition by the Company of any operating business or the capital stock of any other person;
(xviii) any agreement (i) for Indebtedness of the Company or (ii) pursuant to which there are liens or Security Interests on or affecting any of the Company’s property or assets, in each case, including any such agreement to which the Company is a party or bound prior to the consummation of the transactions contemplated by this Agreement Agreement; and
(xix) any other agreement (or require any third party consentsgroup of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business.
(b) The Company has delivered to the Buyer a complete and accurate copy of each agreement listed in Section 3.12, Section 3.13
Appears in 1 contract
Sources: Stock Purchase Agreement (Casella Waste Systems Inc)
Contracts. Interactive Except as disclosed on Schedule 3.17, and expressly excluding the Subsidiary are not parties Real Property Leases, no Acquired Company is bound by or a party to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive contractual obligation (or group of related contractual obligations) for the Subsidiarypurchase or sale of inventory, raw materials, commodities, supplies, goods, products, equipment or other personal property, or another party theretofor the furnishing or receipt of services, is obligated in each case, the performance of which will extend over a period of more than one year or which provides for aggregate payments to pay or by an Acquired Company in excess of fifty thousand dollars ($50,000)100,000 Canadian Dollars or which is subject to an open and unfulfilled purchase order as of the Closing;
(b) (i) any Contracts pursuant capital lease or (ii) any other lease or other contractual obligation relating to the Assets providing for aggregate rental payments in excess of $100,000 Canadian Dollars, under which Interactive any Assets are held or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertyused by an Acquired Company;
(c) any Contracts (contractual obligation, other than advances Real Property Leases, relating to the lease or license of expenses to employees in the ordinary course of businessany Asset, including Technology and Intellectual Property Rights (and including all customer license and maintenance agreements) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guaranteesthat is not included on Schedule 3.12.4;
(d) any Contracts between Interactivecontractual obligation relating to the acquisition or disposition of (i) any business of an Acquired Company (whether by merger, on the one handconsolidation or other business combination, and any sale of its officerssecurities, directors, employees or any Persons that beneficially own in excess sale of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement assets or otherwise)) or (ii) any asset other than in the Ordinary Course of Business;
(e) any deferred compensation agreementscontractual obligation under which an Acquired Company is, bonusor may become, pensionobligated to pay any amount in respect of indemnification obligations, profit sharingpurchase price adjustment or otherwise in connection with any (i) acquisition or disposition of assets or securities (other than the sale of inventory in the Ordinary Course of Business), stock option (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 incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;(ii) above.
(f) any Contracts with any labor union affecting employees contractual obligation concerning or consisting of Interactive a partnership, limited liability company or the Subsidiaryjoint venture agreement;
(g) all partnershipany contractual obligation (or group of related contractual obligations) (i) under which an Acquired Company has created, joint ventureincurred, shareholders' assumed or similar Contracts with guaranteed any PersonDebt or (ii) under which an Acquired Company has permitted any Asset to become Encumbered;
(h) all Contracts that limit or contain restrictions on the ability any contractual obligation under which any other Person has guaranteed any Debt of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionan Acquired Company;
(i) any Contracts which restrict Interactive contractual obligation relating to, exclusivity, or non-competition (whether the Acquired Company is subject to or the Subsidiary from freely engaging in business or competing anywhere; andbeneficiary of such obligations);
(j) any Contracts which otherwise are material contractual obligation relating to the Condition of Interactive confidentiality (whether an Acquired Company is subject to or the Subsidiary. True and correct copies beneficiary of all Scheduled Contracts such obligations), the terms of which permit disclosure hereunder;
(k) any contractual obligation under which an Acquired Company is, or may become, obligated to incur any severance pay or special Compensation obligations which would become payable, directly or indirectly, by reason of, this Agreement, the Contemplated Transactions or the Retail Spin-Off;
(l) any contractual obligation under which an Acquired Company is, or may, have been made available any Liability to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute any investment bank, broker, financial advisor, finder’s agreement or other similar Person (including an obligation to pay any legal, valid and binding obligations of Interactive and the Subsidiary andaccounting, to the best knowledge of Interactive and the Subsidiarybrokerage, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledgefinder’s, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive similar fees or the Subsidiary expenses in connection with this Agreement, the Contemplated Transactions or the Retail Spin-Off);
(m) any Scheduled Contract profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of an Acquired Company’s current or former directors, officers, and employees;
(n) any contractual obligation providing for the employment or consultancy with an individual on a full-time, part-time, consulting or other basis or otherwise providing Compensation or other benefits, including but not limited to severance or change of control benefits, to any officer, director, employee or consultant (other than an Employee Plan);
(o) any agency, dealer, distributor, sales representative, marketing or other similar agreement;
(p) any contractual obligation under which an Acquired Company has advanced or loaned an amount to any of its Affiliates or employees, officers, directors or any default thereundermembers of the immediate family of its employees, officers or directors, other than in the Ordinary Course of Business;
(q) any material contractual obligation with any Governmental Authority (including a notation as to any such contractual obligation under which any Acquired Company has a “small business” or similar designation); and and
(r) any other contractual obligation (or group of related contractual obligations) the validity, effectiveness and continuation performance of all Scheduled Contracts will not be adversely affected by which involves consideration in excess of $100,000 Canadian Dollars over the transactions contemplated by this Agreement or require any third party consentslife of such contractual obligation.
Appears in 1 contract
Sources: Share Purchase Agreement (Green Mountain Coffee Roasters Inc)
Contracts. Interactive Schedule 3.13(a) sets forth a complete list of all agreements to which TechSys is a party and the all agreements to which any Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those a party (the "Scheduled TechSys Contracts") listed ). All references to TechSys in Part 2.8 this Section 3.13 refer to both TechSys and to each Subsidiary of TechSys. Other than this Agreement and the agreements described on the attached Schedule II hereto3.13(a), neither TechSys nor any Subsidiary of TechSys is a party to any written or oral:
(ai) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans option, employee stock purchase or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other plan or arrangement providing for deferred or other compensation to employees or any other employee compensation policies and agreements affecting employees of Interactive benefit, welfare or the Subsidiarystock plan or arrangement which is not described on Schedule 3.13(a), or any contract with any labor union, or any severance agreement;
(fii) contract for the employment or engagement as an independent contractor of any Contracts with any labor union affecting employees of Interactive Person on a full-time, part-time, consulting or the Subsidiaryother basis;
(giii) all partnershipcontract pursuant to which TechSys has advanced or loaned funds, joint ventureor agreed to advance or loan funds, shareholders' or similar Contracts with to any other Person;
(hiv) all Contracts that limit contract or contain restrictions on the ability of Interactive indenture relating to any Indebtedness or the Subsidiary to declare or pay dividendsmortgaging, to make distributions in respect of or to issue or purchase, redeem pledging or otherwise acquire placing a Lien on any of its capital stock or require the Company TechSys Shares or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia the Assets of financial conditionTechSys;
(iv) contract pursuant to which TechSys is the lessee of, or holds or operates, any Contracts real or personal property owned by any other Person;
(vi) contract pursuant to which restrict Interactive TechSys is the lessor of, or permits any third party to hold or operate, any real or personal property owned by TechSys or of which TechSys is a lessee;
(vii) assignment, license, indemnification or other contract with respect to any intangible property (including any Proprietary Right) which is material to the Subsidiary business of TechSys and is not described on Schedule 3.13(a);
(viii) contract or agreement with respect to services rendered or goods sold or leased to or from others, other than any customer purchase order accepted in the ordinary course of business and in accordance with TechSys' past practice;
(ix) contract prohibiting TechSys from freely engaging in any business or competing anywhere; andanywhere in the world;
(jx) any Contracts independent sales representative or distributorship agreement with respect to the business of TechSys; or
(xi) executory contract (other than one described in Sections 3.13(a)(i) through 3.13(a)(x)) which otherwise are is material to the Condition TechSys or involves a consideration in excess of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consents$5,000.
Appears in 1 contract
Sources: Merger Agreement (Techsys Inc)
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, (i) Schedule 3.1(E) lists or any of their assets or properties bound by, or subject to, any references all contracts, agreements, notesor obligations, instruments, franchises, leases, licenses, commitments, arrangements or understandings, whether written or oral oral, including all amendments thereto (collectively, "Contracts"“Commitments”) to which the Company is currently a party or otherwise bound of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) Any such Commitment relating to the employment of any Contracts pursuant to which Interactive or current employee of the SubsidiaryCompany, or another party theretoany severance or change in control payment to any employee, is obligated or any labor contract or collective bargaining agreement, or any Commitment providing for payments to pay in excess any Person as a result of fifty thousand dollars (termination of employment or based upon sales, purchases or profits other than direct payment for goods and which require minimum payments of at least $50,000)50,000 per year;
(b) any Contracts pursuant to which Interactive Any such Commitment or series of related Commitments for capital expenditures or the Subsidiary acquired the right to use any Intellectual Property (as defined acquisition or construction of fixed assets which requires or require aggregate future payments or expenditures in Section 2.9 below) or information that is material to or necessary excess of $75,000 in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertytotal;
(c) Any such Commitment granting to any Contracts Person a first-refusal, first-offer or other right to purchase, acquire or use (1) any of the Assets of the Company (other than advances purchase or sales orders, which pursuant to the terms thereof requires aggregate annual payments to or by the Company in excess of expenses to employees in $50,000, or (2) the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guaranteesCompany Shares;
(d) Any such Commitment with respect to a joint venture or partnership arrangement, under which the Company is or has agreed to become a joint venturer or partner or otherwise has agreed to share profits, losses, costs or liabilities with any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise)other Person;
(e) Any such Commitment pursuant to which the Company is a lessee of any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees Leased Realty requiring annual payments by the Company in excess of Interactive or the Subsidiary$150,000;
(f) any Contracts with any labor union affecting employees Any powers of Interactive or attorney to which the SubsidiaryCompany is a party;
(g) all partnershipAny such Commitment that contains any provision that in any material way prohibits the Company from engaging in any line of business or competing with another Person within the geographic territory in which the Company sells goods, joint venture, shareholders' or similar Contracts with restricts the use of any PersonBusiness Intellectual Property or prohibits the use of any Intellectual Property (including settlement and coexistence agreements);
(h) all Contracts that limit Any other such Commitment which is not cancelable on 60 days or contain restrictions on less notice and which pursuant to the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require terms thereof requires annual payments by the Company or in excess of $50,000 (any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionsuch Commitment under this sub-clause (h), a “Material Commitment”);
(i) any Contracts which restrict Interactive Any agreement or indenture relating to Company Indebtedness or the Subsidiary from freely engaging in business mortgaging, pledging or competing anywhere; andotherwise placing a Lien on any material asset or material group of assets of the Company;
(j) Any such Commitment pursuant to which the Company grants or obtains any Contracts license or other rights to any Intellectual Property (other than licenses of “off the shelf” software which otherwise are material to readily available on a commercial or retail basis with a replacement cost and/or annual license fee of less than $10,000).
(ii) Except as set forth on Schedule 3.1(E) or Schedule 3.1(B), (a) all Commitments listed on Schedule 3.1(E) are now and will be, immediately following the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All Transfer of the Scheduled Contracts are Company Shares at the Closing, in full force and effect effect, and constitute legal, represent the valid and binding obligations obligation of Interactive and the Subsidiary Company, and, to the best knowledge of Interactive and the SubsidiaryShareholder, each of the other parties thereto; (b) the Company has performed all obligations required to be performed by it and is not in default under or in breach of nor in receipt of any claim of default or breach under any Material Commitment; (c) no event has occurred which with the passage of time or the giving of notice or both would reasonably be expected to result in a default, breach or event of noncompliance by the Company under any Material Commitment; and (d) the execution, delivery and performance of the Commitments listed on Schedule 3.1(E) by the Company are not in violation of the Charter Documents of the Company, except to the best extent that such any of Interactive's the foregoing would not reasonably be expected to have a Material Adverse Effect.
(iii) Except as set forth on Schedule 3.1(H): (a) the Company holds all permits, licenses, approvals, consents and authorizations issued by any Governmental Entity or other Person and which are required by applicable Laws and material to its operation of the Business (collectively, “Licenses”). Neither the Company nor the Shareholder has received notice of any Legal Proceeding and, to the knowledge of the Shareholder, no such Legal Proceeding has been threatened, which would, if successful on the merits, lead to a revocation, suspension, or limitation of the rights of any such Licenses, and the Subsidiary's knowledgeCompany is in material compliance with each of its such Licenses, no circumstances exist which would give rise and (b) to an Action (as defined in Section 2.13) against the knowledge of the Shareholder, all applications required to have been filed for renewal of any such Licenses have been duly filed on a timely basis with all appropriate Governmental Entities or by Interactive other Persons and all other filings required to have been made with respect to such Licenses have been made on a timely basis with all appropriate Governmental Entities or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consents.other Persons,
Appears in 1 contract
Sources: Stock Purchase Agreement (New York & Company, Inc.)
Contracts. Interactive (a) Schedule 4.10(a) sets forth a complete and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any accurate list of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") all of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Acquired Company or any Acquired Subsidiary to maintain specified financial ratios is a party (the “Company Contracts”) or levels by which any of net worth or other indicia of financial condition;them is otherwise bound:
(i) any indenture, mortgage, loan, credit or similar Contract under which the Acquired Company or any Acquired Subsidiary has borrowed money, issued any note, bond, indenture or other evidence of indebtedness for borrowed money or sold and leased back assets;
(ii) any Contract under which the Acquired Company or an Acquired Subsidiary has granted a Lien on its assets or properties to secure Indebtedness of any Person; (iii) any Contract that includes a guarantee by the Acquired Company or any Acquired Subsidiary of any obligation of another Person (other than of the Acquired Company or any Acquired Subsidiary); (iv) any Contract establishing any joint venture, strategic alliance, partnership or other collaboration (including arrangements under which proprietary information is shared);
(v) any Contract under which the Acquired Company or an Acquired Subsidiary is obligated to sell or lease real or personal property having a value in excess of $500,000; (vi) any Contract that the Acquired Company reasonably expects will require expenditures or generate revenues in the 12- month period ending after the Closing Date in excess of $500,000; provided, however, that the listing of an agreement on Schedule 4.10(a) (vi) is not a representation or warranty that the agreement will generate such revenues in such period in excess of $500,000;
(vii) any Contract that expressly limits, impedes, interferes with or restricts the ability of the Acquired Company or any Acquired Subsidiary (A) to compete in or enter into or do any line of business in any geographic area or (B) to solicit or hire any Person; (viii) any Contract (other than employment contracts and compensatory arrangements) with any Affiliate of the Seller (other than Contracts which restrict Interactive with another member of the Company Group) or any current or former officer, director or stockholder of the Seller or any of its Affiliates;
(ix) any Contract relating to the acquisition (by merger, purchase of stock or assets or otherwise) by the Acquired Company or any Acquired Subsidiary of any operating business or material assets or the Subsidiary from freely engaging in business or competing anywherecapital stock of any other Person; and
(jx) any Contracts which otherwise are material Contract providing for severance, retention, change in control or other similar payments; (xi) any Contract for the employment of any individual on a full-time, part-time or other basis providing for target annual compensation in excess of $200,000 and labor or collective bargaining Contracts; (xii) any customer or supplier Contract containing a “most favored nations” pricing arrangement, special warranties, agreements to take back or exchange goods or similar arrangements; (xiii) any Contract obligating the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract Acquired Company or any default thereunder; and Acquired Subsidiary to provide or obtain products or services for a period of more than 30 days or requiring the validity, effectiveness and continuation Acquired Company or any Acquired Subsidiary to purchase or sell a stated portion of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement requirements or require any third party consents.outputs;
Appears in 1 contract
Sources: Purchase and Sale Agreement
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts"a) Section 3.15(a) of the Disclosure Schedule lists the following types, except for agreements (other than those agreements which have been terminated with no ongoing obligations other than confidentiality in favor of either Company) (each a “Contract”) to which either Company or any Subsidiary is a party (or which is otherwise related to the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:Business):
(ai) any Contracts pursuant agreement (or group of related agreements) for the lease of personal property from or to third parties which Interactive involves more than the sum of $50,000 per annum;
(ii) any agreement (or group of related agreements) in which either Company or any Subsidiary has granted “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 or has granted any rights to purchase any material asset used in the SubsidiaryBusiness;
(iii) any agreement concerning the establishment or operation of a partnership, joint venture or another party theretolimited liability company;
(iv) any agreement (or group of related agreements) under which either Company or any Subsidiary has created, is obligated to pay 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 Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of either Company or any Subsidiary (other than sales of products in excess the Ordinary Course of fifty thousand dollars Business) or any agreement for the acquisition of the assets or business of any other entity ($50,000other than purchases of materials, supplies, equipment or services in the Ordinary Course of Business);
(bvi) any Contracts pursuant to which Interactive employment agreement, consulting agreement, severance agreement (or agreement that includes provisions for the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 belowpayment of severance) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts retention agreement (other than advances of expenses to employees those in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees standard form used by either Company or any Persons that beneficially own Subsidiary in excess the Ordinary Course of 10.0% Business, copies of which have previously been delivered to the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwiseBuyers);
(evii) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans material settlement agreement or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiarysettlement-related agreement (including any agreement in connection with which any employment-related claim is settled);
(fviii) any Contracts material agreement (other than confidentiality, non-competition, non-solicitation, employment, consulting, contractor or retention agreements) with any labor union affecting employees current or former officer, director or shareholder of Interactive either Company or the Subsidiaryany Affiliate thereof;
(gix) all partnershipany agency, joint venturedistributor, shareholders' sales representative, franchise or similar Contracts with agreements to which either Company or any PersonSubsidiary is a party or by which either Company or any Subsidiary is bound;
(hx) all Contracts that limit any material agreement which contains any provisions requiring either Company or contain restrictions on the ability of Interactive or the any Subsidiary to declare or pay dividends, to make distributions indemnify any other party (excluding indemnities contained in respect of or to issue or agreements for the purchase, redeem sale or otherwise acquire license of products or services entered into in the Ordinary Course of Business that do not obligate the Companies with respect to amounts in excess of the consideration paid to or received by the Companies thereunder);
(xi) any agreements relating to grants, funding or other forms of assistance, including loans with interest at below market rates, received by either Company or any of its capital stock Subsidiaries from any Governmental Entity;
(xii) any Contract that prohibits, restricts or require limits either Company or any Subsidiary, or after the Closing would prohibit, restrict or limit EIG Holdings or any of its Affiliates from engaging in any type of business or activity;
(xiii) any Contract which would entitle any third party to receive a license or any other right to intellectual property of the Buyers or any of the Buyers’ affiliates following the Closing;
(xiv) any Contract with ICANN, ARIN, IANA and any regional internet registry, country internet registry or organization that performs a similar function, including all registry and registry-registrar Contracts and Section 3.16(a) of the Disclosure Schedule contains a list of each top level domain under which the Company or any Subsidiary is accredited pursuant to maintain specified financial ratios or levels of net worth or other indicia of financial conditionsuch Contracts;
(ixv) any Contracts agreement not otherwise listed in Section 3.16(a) of the Disclosure Schedule under which restrict Interactive the consequences of a default or the Subsidiary from freely engaging in business or competing anywheretermination would reasonably be expected to have a Company Material Adverse Effect; and
(jxvi) any Contracts which otherwise are material other agreement (or group of related agreements) providing for the expenditure or receipt by either Company or any Subsidiary of an amount in excess of $250,000.
(b) The Seller has delivered to the Condition Buyers a complete and accurate copy of Interactive each Contract (as amended to date) listed in any of Section 3.12, Section 3.13, Section 3.15 or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All Section 3.25 of the Scheduled Contracts are Disclosure Schedule. With respect to each Contract so listed: (i) the Contract is legal, valid, binding and enforceable, subject to Applicable Bankruptcy Laws, and in full force and effect and constitute legal, valid and binding obligations of Interactive and against the Company or the Subsidiary that is the party thereto, as applicable, and, to the best knowledge Knowledge of Interactive and the SubsidiaryCompanies, the against each other parties party thereto; (ii) the Contract will continue to be legal, valid, binding and enforceable, subject to Applicable Bankruptcy Laws, and in full force and effect against the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive Company or the Subsidiary that is the party thereto, as applicable, and, to the Knowledge of the Companies, against each other party thereto immediately following the Closing in connection accordance with the terms thereof as in effect immediately prior to the Closing; and (iii) none of either Company, any Scheduled Contract Subsidiary nor, to the Knowledge of the Companies, any other party, is in breach or violation of, or default under, any such Contract, and no event has occurred, is pending or, to the Knowledge of the Companies, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a breach or default by either Company, any Subsidiary or, to the Knowledge of the Companies, any other party under such Contract.
(c) None of either Company or any default thereunder; and Subsidiary is a party to any oral contract, agreement or other arrangement which, if reduced to written form, would be required to be listed in Section 3.15(a) of the validityDisclosure Schedule under the terms of this Section 3.15(c). None of either Company or any Subsidiary is or will be a party to any written or oral arrangement (i) to perform services or sell products which is expected to be performed at, effectiveness and continuation of all Scheduled Contracts or to result in, a loss or (ii) for which the customer has already been billed or paid that will not be adversely affected by fully accounted for on the transactions contemplated by this Agreement or require any third party consentsMost Recent Balance Sheet.
Appears in 1 contract
Sources: Master Share Purchase Agreement (Endurance International Group Holdings, Inc.)
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts"A) Section 4(a)(vii)(A) of the Stockholders’ Disclosure Schedule lists each of the following typestypes of contracts or agreements (such contracts or agreements, except for those the “Material Contracts”) in effect as of the date of this Agreement to which any Company or Designated Subsidiary is a party (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
specifically excluding (ax) any Contracts pursuant to which Interactive Resident Leases, (y) any contract or agreement that will no longer be in effect following the SubsidiaryClosing and (z) any contract or agreement that is, or another party theretoat the Closing will be, is obligated to pay terminable at-will (as defined below) or terminable upon not more than ninety (90) days’ notice by such Company or Designated Subsidiary without penalty): (1) employment or consulting agreement requiring payment by a Company or Designated Subsidiary in excess of fifty thousand dollars $250,000 in any calendar year remaining in its term, (2) agreement containing an active and effective covenant not to compete or standstill that prohibits or materially restricts the ability of any of the Companies or Designated Subsidiaries to compete in any line of business or with any Person, (3) operating lease of tangible personal property requiring payment by a Company or Designated Subsidiary in excess of $50,000);
100,000 in any calendar year remaining in its term, (b4) agreement for the purchase of supplies or products which requires performance over a period of more than one year and the payment of an amount in excess of $500,000 in any Contracts pursuant to which Interactive calendar year, (5) lease or the sublease of real property by any Company or Designated Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in from other Persons, (6) management agreement (i.e., agreement providing for the business management and/or operation of Interactive any of the Facilities or any other assisted-living facility, and specifically excluding management agreements between two or more of the SubsidiaryCompanies and/or Company Subsidiaries), (7) contract or pursuant to which Interactive agreement between RCI Insurance Company, ▇▇▇▇▇▇▇ Channel Indemnity Inc. or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between InteractiveMystic River Insurance Inc., on the one hand, and any of its officers, directors, employees Person that is not a Company or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoingCompany Subsidiary, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned personother hand, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, any insurance policy issued by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to RCI Insurance Company, ▇▇▇▇▇▇▇ and Advercomm. All Channel Indemnity Inc. or Mystic River Insurance Inc., (8) contract or other agreement with or for the benefit of any Governmental Authority requiring payment by a Company or Designated Subsidiary in excess of $250,000 in any calendar year remaining in its term, (9) note, loan agreement, letter of credit, bond, mortgage, guarantee or other similar contract, agreement or other instrument entered into by any Company or any Designated Subsidiary evidencing or establishing the terms of or guaranteeing any indebtedness for borrowed money (including, for this purpose, any Facility financing structured as a capital lease), (10) contract or agreement relating to the development or construction of, or additions or expansions to, any Facility under which any Company or any of the Scheduled Contracts are Designated Subsidiaries currently has, or expects to incur, an obligation in excess of $500,000, (11) contract or agreement providing for the sale, lease or sublease of, or option to sell, lease or sublease, any Facility or the purchase, lease or sublease of, or option to purchase, lease or sublease any Facility or other real estate, (12) contract or agreement pursuant to which any Company or Designated Subsidiary is or may be obligated to make payments, contingent or otherwise, in excess of $250,000 on account of or arising out of prior acquisitions or sales of real estate or other assets, (13) contract or agreement requiring any Company or Designated Subsidiary to provide any funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in any other Person (other than between a Company and/or Designated Subsidiary and another Company and/or Designated Subsidiary), (14) any interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a hedging transaction, (15) contract or agreement of the Companies or the Designated Subsidiaries with third parties relating to a joint venture, partnership, limited liability company or strategic alliance of any Company or Designated Subsidiary, and (16) any written agreement (other than any Permitted Lien) of a type not already identified above in this Section 4(a)(vii)(A) which by its terms will not expire and is not terminable by any Company or Company Subsidiary prior to the third anniversary of the date hereof. A contract or agreement is “terminable at-will”, as that expression is used in this Section 4(a)(vii)(A), if it expressly provides that it is terminable at-will, regardless of whether any covenant of good faith and fair dealing may be implied as a matter of law in connection with the termination thereof.
(B) Each Material Contract is in full force and effect and constitute legalis valid, valid binding and binding obligations of Interactive and enforceable against the Subsidiary Companies or Designated Subsidiaries party thereto, and, to the best knowledge Knowledge of Interactive the Stockholders, each other party thereto in accordance with its terms, except for such failures to be in such full force and effect or to be valid, binding and enforceable as are not reasonably likely to have, individually or in the Subsidiaryaggregate, a Material Adverse Effect. None of the other parties thereto; Companies or Designated Subsidiaries, nor, to the best Knowledge of Interactive's the Stockholders, any other party thereto, is in material breach or violation of, or default under, any Material Contract, and no event has occurred that with notice or lapse of time or both would constitute a violation, breach or default under any Material Contract, except where in each case such breach, violation or default is not reasonably likely to have, individually or in the Subsidiary's knowledgeaggregate, a Material Adverse Effect. As of the date of this Agreement, no circumstances exist Company or Designated Subsidiary has received any written notice of an event of default pursuant to the terms of any Material Contract, specifically excluding, for this purpose, any notice of an alleged event of default which has since been withdrawn or otherwise remedied and any notice of default which, even if true, does not have a Material Adverse Effect. Section 4(a)(vii)(A)(11) of the Stockholders’ Disclosure Schedule lists, with respect to each purchase option under a real property lease of a Facility in effect as of the date of this Agreement, any amounts that would give rise be used in the calculation of the purchase option price if the option were exercisable and exercised as of the date of this Agreement, other than those amounts that are fixed and explicitly stated in such agreement, or are derived from fair market value or freely available indices or similar economic measures.
(C) A correct and complete copy of each Material Contract has been delivered or otherwise made available to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsAcquiror for review.
Appears in 1 contract
Sources: Merger Agreement (Ventas Inc)
Contracts. Interactive and (a) Neither the Subsidiary are not parties toCompany nor any of its subsidiaries is a party to or is bound by any executory:
(i) Contract with any officer, nor is Interactivedirector, Company Employee or member of the SubsidiaryCompany Board, or any service, operating or management agreement or arrangement with respect to any of their its assets or properties bound by(whether leased or owned), other than those that are terminable by the Company or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements of its subsidiaries on no more than thirty (30) days' notice without liability or understandings, written financial obligation to the Company or oral (collectively, "Contracts") any of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)its subsidiaries;
(bii) Contract or plan (including, without limitation, any stock option plan, stock appreciation right plan, equity based compensation plan or stock purchase plan) any Contracts pursuant to of the benefits of which Interactive will be increased, or the Subsidiary acquired vesting of benefits of which will be accelerated, by the right to use occurrence of any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in of the business of Interactive transactions contemplated by this Agreement, or the Subsidiary, or pursuant to value of any of the benefits of which Interactive or will be calculated on the Subsidiary has granted to others basis of any of the right to use, or which otherwise relates to, its Intellectual Propertytransactions contemplated by this Agreement;
(ciii) any Contracts (Contract of indemnification, guaranty or warranty other than advances any Contract of expenses to employees indemnification, guaranty or warranty entered into in connection with the sale, license or purchase of products or services in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(div) Contract containing any Contracts between Interactive, on covenant limiting in any respect the one hand, and right of the Company or any of its officers, directors, employees subsidiaries to engage in any line of business or to compete with any person or entity or granting any exclusive distribution rights;
(v) Contract currently in force relating to the disposition or acquisition by the Company or any Persons of its subsidiaries after the date of this Agreement of a material amount of assets outside the ordinary course of business, or pursuant to which the Company or any of its subsidiaries has acquired any material ownership interest in any person other than Company's subsidiaries;
(vi) dealer, distributor, joint marketing or development Contract under which the Company or any of its subsidiaries has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material Contract pursuant to which the Company or any of its subsidiaries has continuing material obligations to jointly develop any Intellectual Property that beneficially own will not be owned, in whole or in part, by the Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(vii) Contract to license any third party the right to manufacture or reproduce (other than copies of licensed software) any Company Product, service or technology or any Contract granting rights to a third party to sell or publicly distribute any Company Products, service or technology except agreements with distributors or sales representatives in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form furnished or made available to Parent;
(viii) Contract to provide source code to any third party for any product or technology that is material to the Company and its subsidiaries, taken as a whole;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(x) material settlement agreement under which the Company has ongoing obligations; or
(xi) Contract with a customer of the Company involving payments to the Company in excess of 10.0% $500,000 in any individual case or in the aggregate.
(b) Neither the Company nor any of its subsidiaries, nor to the knowledge of the outstanding equity interest Company, any other party to a Material Company Contract (each a "Principal Owner") as defined below), is in breach, violation or default under, and neither the Company nor any of Interactiveits subsidiaries has received written notice that it has breached, violated or defaulted under, any Affiliate of the terms or relative, or Affiliate of a relative, conditions of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power material Contracts to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require which the Company or any Subsidiary of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound (including, without limitation, the Contracts that are required to maintain specified financial ratios be set forth in the Company Schedule) (any such Contract, a "MATERIAL COMPANY CONTRACT") in such a manner as would permit any other party to cancel or levels of net worth terminate any such Material Company Contract, or would permit any other party to seek material damages or other indicia remedies (for any or all of financial condition;
(i) any Contracts which restrict Interactive such breaches, violations or defaults, in the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsaggregate).
Appears in 1 contract
Contracts. Interactive (a) All Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Company filed on or after January 1, 2022 pursuant to the Exchange Act of the type described in Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed.
(b) Other than the Contracts described in Section 3.17(a), Section 3.17(b) of the Company Disclosure Letter sets forth a complete list, in each case as of the date hereof, of each Contract (or the accurate description of principal terms in case of oral Contracts), including all amendments, supplements and side letters thereto that modify each such Contract in any material respect, to which the Subsidiary Company or any of the Company Subsidiaries is a party or by which it is bound or to which any of their respective assets are not parties tosubject (other than any of the foregoing solely between the Company and any of the wholly owned Company Subsidiaries or solely between any wholly owned Company Subsidiaries) that:
(i) is a limited liability company agreement, nor is Interactivepartnership agreement or joint venture agreement or similar Contract (including Joint Venture Agreements) with a third party (or sets forth material terms of any such arrangement);
(ii) contains covenants of the Company or any of the Company Subsidiaries purporting to limit, in any material respect, either the Subsidiary, type of business in which the Company or any of the Company Subsidiaries or any of their assets affiliates may engage or properties bound bythe geographic area in which any of them may so engage, other than (w) Company Permitted Liens, (x) special purpose entity requirements contained in the Existing Loan Documents or subject toother documents governing Indebtedness of the Company or any Company Subsidiary or replacements of the foregoing, (y) customary provisions entered into by the Company or a Company Subsidiary in the ordinary course of business and contained in Major Leases, Ground Leases, Company Management Agreements or Company Franchise Agreements or (z) contained in other recorded documents by which real property was conveyed by the Company or any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral of the Company Subsidiaries to any user;
(collectively, "Contracts"iii) (a) evidences Indebtedness described in clauses (a) through (d) of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay definition thereof in excess of fifty thousand dollars $10,000,000 of the Company or any of the Company Subsidiaries, whether unsecured or secured or ($50,000b) evidences any indebtedness secured by any Company Property and/or direct ownerships therein (such Contracts, the "Existing Loan Documents");
(biv) except for any capital contribution requirements and covenants to fund working capital needs or required capital, in each case as set forth in the organizational documents of any Person set forth in Section 3.17(b)(iv) of the Company Disclosure Letter or in any Joint Venture Agreements, Company Management Agreements, Company Franchise Agreements, Existing Loan Documents or other documents governing Indebtedness of the Company or any Company Subsidiary (x) requires the Company or any Company Subsidiary to make any investment (in each case, in the form of a loan, capital contribution or similar transaction) in any non–wholly owned Company Subsidiary or other Person in excess of $2,000,000 or (y) evidences a loan (whether secured or unsecured) made to any other Person in excess of $1,000,000 (excluding ordinary course extensions of trade credit (such as funding of customer non-recurring charges) or rent relief);
(v) any Contract (other than solely among the Company and one or more Company Subsidiaries) provides for the sale, assignment, ground lease or exchange of, or option to sell, assign, ground lease or exchange, any Company Property or any portion thereof, or for the purchase, assignment, assumption, lease, ground lease or exchange of, or option to purchase, assign, ground lease or exchange, any real estate;
(vi) other than Contracts pursuant for ordinary repair and maintenance, any Contract (other than solely among the Company and one or more Company Subsidiaries) relating to the development or construction of, or renovations, additions or expansions to, the Company Properties, under which the Company or any Company Subsidiary has, or expects to incur, an obligation under such Contract of (A) individually, $2,000,000 or more, or (B) collectively with all obligations under any other Contracts for the applicable project with respect to which Interactive such Contract has been entered, $5,000,000 or more;
(vii) relates to the Subsidiary acquired settlement (or proposed settlement) of any pending or threatened suit or proceeding, other than any settlement that provides solely for the right payment of less than $4,000,000 in cash (net of any amount covered by insurance or indemnification that is reasonably expected to use be received by the Company or any Company Subsidiary);
(viii) is with any current executive officer or director of the Company or any of the Company Subsidiaries, any stockholder of the Company beneficially owning 5% or more of outstanding Company Shares or, to the Company's knowledge, any member of the "immediate family" (as such term is defined in Item 404 of Regulation S-K promulgated under the Securities Act) or any affiliate of any of the foregoing;
(ix) is a material Contract that relates to material Company IT Assets or Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances (A) generally commercially available, off-the-shelf licenses or services agreements, with annual aggregate payments in an amount of expenses to employees $1,000,000 or less in fiscal year 2021 or expected in fiscal year 2022 or (B) non-exclusive licenses in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(ex) any deferred compensation agreementsis a lease, bonussublease, pensionlicense or other occupancy agreement, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts in each case with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary respect to declare or pay dividends, real property to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require which the Company or any Company Subsidiary to maintain specified financial ratios is a party as lessee, sublessee, licensee, or levels of net worth or other indicia of financial conditiongrantee;
(ixi) is (A) a golf course operation or management agreement with respect to any Company Property or to which the Company and any Company Subsidiary is a party or (B) any Contracts other Contract that relates to access, use, or operation of any golf course in connection with any Company Property or to which restrict Interactive the Company and any Company Subsidiary is a party and, in the case of each of clauses (A) and (B), is in the Company or the Subsidiary from freely engaging in business or competing anywhere; andany Company Subsidiary's possession;
(jxii) any Contracts which Contract not otherwise are material described above, other than a Major Lease, a Ground Lease, a Company Management Agreement or a Company Franchise Agreement, that is a binding individual purchase order or statement of work that calls for or guarantees aggregate payments by the Company and the Company Subsidiaries of more than $10,000,000 over the remaining term of such binding individual purchase order or statement of work. Each Contract of a type described in clauses (a) and (b) of this Section 3.17 is referred to herein as a "Company Material Contract." To the knowledge of the Company, the Company has made available to the Condition of Interactive or the Subsidiary. True Parent Entities true and correct complete copies of all Scheduled Company Material Contracts have been made available to ▇▇▇▇▇ and Advercomm. All as of the Scheduled Contracts date hereof, including amendments and supplements thereto that modify each such Contract in any material respect.
(c) Except as set forth in Section 3.17(c) of the Company Disclosure Letter (i) neither the Company nor any Company Subsidiary is in (or has received any written claim of) breach of or default under the terms of any Company Material Contract, and, to the knowledge of the Company, no event has occurred that with notice or lapse of time or both would constitute a breach or default thereunder by the Company or any Company Subsidiary, in each case, except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; (ii) to the knowledge of the Company, no other party to any Company Material Contract (other than any Major Leases, Ground Leases, Company Franchise Agreements and Company Management Agreements which are addressed in Section 3.14) is in breach of or default under the terms of any Company Material Contract where such breach or default would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; and (iii) each Company Material Contract is a valid and binding agreement of the Company or a Company Subsidiary, as applicable, and, to the knowledge of the Company, the other parties thereto and is in full force and effect and constitute legaleffect, valid and binding obligations of Interactive and the Subsidiary and, subject to the best knowledge of Interactive Bankruptcy and Equity Exception, in each case except as would not, individually or in the Subsidiaryaggregate, the other parties thereto; reasonably be expected to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentshave a Company Material Adverse Effect.
Appears in 1 contract
Contracts. Interactive Except for contracts, commitments, plans, agreements and licenses attached to and described in the Subsidiary are Schedule of Contracts and Commitments (Exhibit 5.15) attached hereto, DCS is not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, a party to or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant plan or contract providing for compensation or benefits of any type in connection with services rendered to which Interactive DCS by its employees or the Subsidiary, or another party thereto, is obligated independent contractors having an aggregate value with respect to pay any one individual in excess of fifty thousand dollars $25,000 ($50,000other than those providing for employment at will), or involving any interest in the capital stock of DCS;
(b) any Contracts pursuant to which Interactive contract or agreement for the Subsidiary acquired the right to use purchase of any Intellectual Property (as defined in Section 2.9 below) commodity, material or information that is material to or necessary Fixed Asset, other than purchase orders entered into in the business ordinary course of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertybusiness;
(c) any Contracts (contract or agreement for the sale of any product, material, Fixed Assets or service, other than advances of expenses to employees contracts with customers entered into in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on contract or agreement providing for the one hand, and any purchase of all or substantially all of its officers, directors, employees or any Persons that beneficially own in excess requirements of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactiveparticular product from a supplier, or any Affiliate or relative, or Affiliate for periodic minimum purchases of a relative, of any of the foregoing, on the other; ("Affiliate" of particular product from a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise)supplier;
(e) any deferred compensation agreementscontract or agreement which by its terms does not terminate or is not terminable without penalty by DCS and any successor or assignee of DCS on 30 days' notice, bonus, pension, profit sharing, stock option other than purchase orders and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees sales orders entered into in the ordinary course of Interactive or the Subsidiarybusiness for goods to be delivered within 90 days;
(f) any Contracts with contract containing covenants limiting in any labor union affecting employees material respect DCS's freedom to compete in any line of Interactive business or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(g) any license agreement (as licensor or licensee);
(h) all Contracts that limit any contract or contain restrictions on the ability agreement with any present or former officer, director or stockholder of Interactive DCS or the Subsidiary to declare with any persons or pay dividends, to make distributions in respect of organizations controlled by or to issue or purchase, redeem or otherwise acquire affiliated with any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionthem;
(i) any Contracts which restrict Interactive contract, agreement or the Subsidiary from freely engaging in business arrangement providing for a guarantee or competing anywhere; andindemnification by DCS;
(j) any agreement concerning a partnership or joint venture; or
(k) any agreement under which the consequences of a default or termination could have a material adverse effect on the business, financial conditions or prospects of DCS. Copies of all contracts, commitments, plans, agreements or licenses attached to and described in the Schedule of Contracts which otherwise and Commitments are material true, correct and complete, and have been subject to no amendment, extension or other modification as of the Condition date hereof. Each contract, commitment, plan agreement and license described in the Schedule of Interactive Contracts and Commitments or the Subsidiary. True Schedule of Customers, Distributors and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ Independent Sales Representatives (Exhibit 5.28) is binding and Advercomm. All of the Scheduled Contracts are enforceable in accordance with its terms and is in full force and or effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary andwithout any default thereunder by DCS or, to the best knowledge Knowledge of Interactive DCS or any Stockholder, by any other party thereto (a "default" being defined for purposes hereof as an actual default or any set of facts which would, upon receipt of notice or passage of time, or both, constitute a default). Except as set forth in the Schedules to this Agreement, the execution, delivery and performance of this Agreement, and the Subsidiaryagreements, the other parties thereto; to the best of Interactive's documents and instruments contemplated hereby, by DCS and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; Stockholders and the validity, effectiveness change in control of DCS effected hereby does not and continuation of all Scheduled Contracts will not be adversely affected by affect the transactions contemplated by this Agreement validity or require enforceability of, or in any third way modify DCS's rights or obligations under any contract, lease, commitment, plan, agreement or license to which DCS is a party consentsor under which it is entitled to benefits.
Appears in 1 contract
Sources: Merger Agreement (Datalink Corp)
Contracts. Interactive and (a) Section 2.15 of the Subsidiary are not parties to, nor is Interactive, Disclosure Schedule lists the Subsidiary, following agreements (written or oral) to which the Company or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") Subsidiary is a party as of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 date of Schedule II heretothis Agreement:
(ai) any Contracts pursuant agreement (or group of related agreements) for the lease of personal property from or to which Interactive or the Subsidiary, or another party thereto, is obligated to pay third parties providing for lease payments in excess of fifty thousand dollars $10,000 per annum or having a remaining term longer than twelve (12) 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 calls for performance over a period of more than one year or (B) in which the Company or any Subsidiary has granted manufacturing rights, “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 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 the 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 $50,00025,000 or under which the Company or any Subsidiary has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Company or any Subsidiary (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or components in the Ordinary Course of Business);
(bvi) any Contracts pursuant to which Interactive agreement concerning confidentiality or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertynoncompetition;
(cvii) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships employment or guaranteesconsulting agreement;
(dviii) any Contracts between Interactiveagreement involving any current or former officer, on the one hand, and any of its officers, directors, employees director or any Persons that beneficially own in excess of 10.0% stockholder of the outstanding equity interest (each a "Principal Owner") of Interactive, Company or any an Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise)thereof;
(eix) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans agreement under which the consequences of a default or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiarytermination would reasonably be expected to have a Company Material Adverse Effect;
(fx) any Contracts with agreement which contains any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require provisions requiring the Company or any Subsidiary to maintain specified financial ratios indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or levels license of net worth or other indicia products entered into in the Ordinary Course of financial conditionBusiness);
(ixi) any Contracts agreement that could reasonably be expected to have the effect of prohibiting or impairing the conduct of the business of the Company or any Subsidiary as currently conducted and as currently proposed to be conducted;
(xii) any agreement under which restrict Interactive the Company or any Subsidiary is restricted from selling, licensing or otherwise distributing any of its technology or products, or providing services to, customers or potential customers or any class of customers, in any geographic area, during any period of time or any segment of the Subsidiary from freely engaging in business market or competing anywhereline of business;
(xiii) any agreement which would entitle any third party to receive a license or any other right to Intellectual Property of the Buyer or any of the Buyer’s Affiliates following the Closing; and
(jxiv) any Contracts which otherwise are material other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business.
(b) The Company has delivered to the Condition Buyer a complete and accurate copy of Interactive each agreement listed in Section 2.13 or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All 2.15 of the Scheduled Contracts are Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, valid, binding and to the knowledge of the Company enforceable and in full force and effect; (ii) the agreement will continue to be legal, valid, binding and to its knowledge enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; and constitute legal, valid and binding obligations of Interactive and (iii) neither the Company nor any Subsidiary andnor, to the best knowledge of Interactive the Company, any other party, is in breach or violation of, or default under, any such agreement, and no event has occurred, is pending or, to the Subsidiaryknowledge of the Company, is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute a breach or default by the Company or any Subsidiary or, to the knowledge of the Company, any other party under such agreement.
(c) Neither the Company nor any Subsidiary has been suspended or debarred from bidding on contracts or subcontracts with any Governmental Entity; no such suspension or debarment has been threatened to the Company or initiated. To the Company’s knowledge, neither the Company nor any Subsidiary has been or is now being audited or investigated by the United States Government Accounting Office, the other parties theretoUnited States Department of Defense or any of its agencies, the Defense Contract Audit Agency, the contracting or auditing function of any Governmental Entity with which it is contracting, the United States Department of Justice, the Inspector General of the United States, or any prime contractor with a Governmental Entity; nor, to the best knowledge of Interactive's and the Subsidiary's knowledgeCompany, has any such audit or investigation been threatened. To the knowledge of the Company, there is no circumstances exist which would give rise valid basis for (i) the suspension or debarment of the Company or any Subsidiary from bidding on contracts or subcontracts with any Governmental Entity or (ii) any claim (including any claim for return of funds to the Governmental Entity) pursuant to an Action (as defined audit or investigation by any of the entities named in Section 2.13) against the foregoing sentence. The Company has no agreements, contracts or by Interactive commitments which require it to obtain or the Subsidiary in connection maintain a security clearance with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsGovernmental Entity.
Appears in 1 contract
Sources: Merger Agreement (Netezza Corp)
Contracts. Interactive Each correspondingly lettered Section of Schedule 4.14 sets forth a true, correct and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") complete list of the following typesContracts to which any Acquired Company is a party that are currently in force or under which any Acquired Company has continuing benefits, except for those liabilities and/or obligations (other than the "Scheduled Contracts"Company Benefit Plans set forth on Schedule 4.17(a) listed in Part 2.8 of and the insurance policies on Schedule II hereto:4.18):
(a) any bonds, debentures, notes, credit or loan agreements or loan commitments, mortgages, indentures, guarantees or other Contracts pursuant relating to which Interactive the borrowing of money or the Subsidiarydeferred purchase price of property or binding upon any properties or assets (real, personal or another party theretomixed, is obligated to pay in excess tangible or intangible) of fifty thousand dollars ($50,000)any Acquired Company;
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary were not entered into in the business ordinary course of Interactive or the Subsidiarybusiness, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertyconsistent with past practice;
(c) leases of any personal property and all other Contracts involving any properties or assets (whether real, personal or mixed, tangible or intangible), involving an annual commitment or payment of or performance having a value of more than $50,000 by any Acquired Company;
(d) Contracts that (i) limit or restrict any Acquired Company or any officers, directors, managers, members, employees, shareholders or other agents or representatives of any Acquired Company (in their capacity as such) from engaging in any business or other activity in any jurisdiction, (ii) create or purport to create any exclusive or preferential relationship or arrangement (including without limitation, a most-favored nation provision), (iii) otherwise restrict or limit any Acquired Company’s ability to operate or expand its business, or (iv) impose, or purport to impose, any obligations or restrictions on any Affiliate of any Acquired Company;
(e) Contracts for capital expenditures or the acquisition or construction of fixed assets requiring the payment by any Acquired Company of an amount in excess of $50,000;
(f) Contracts that provide for any payment or benefit upon the execution hereof or the Closing or in connection with the transactions contemplated hereby, including accelerated vesting or other similar rights;
(g) Contracts granting any Person a Lien on all or any part of any properties or assets of any Acquired Company;
(h) Contracts for the cleanup, abatement or other corrective actions in connection with any contamination by Hazardous Materials or the investigation or remediation of any existing environmental condition;
(i) Contracts granting to any Person an option or a right of first refusal, first-offer or similar preferential right to purchase or acquire any assets of any Acquired Company;
(j) Contracts with any agent, distributor or representative that is not terminable without penalty on thirty (30) days’ or less notice;
(k) Contracts for the granting or receiving of a license, sublicense or franchise or under which any Person is obligated to pay or has the right to receive a royalty, license fee, franchise fee or similar payment;
(l) Contracts (i) pursuant to which material Company Intellectual Property is licensed or transferred to any third party (other than advances of expenses to employees end user licenses in the ordinary course of business) involving loansor (ii) pursuant to which a third party has licensed or transferred any material Company Intellectual Property to the Company (other than licenses for commercially available, loan agreements, debt securities, mortgages, deeds off-the-shelf software applications with a replacement cost and/or aggregate annual license and maintenance fee of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwiseless than $10,000);
(em) Contracts providing for the indemnification or holding harmless of any deferred compensation agreementsofficer, bonusmember, pensionmanager, profit sharing, stock option and incentive plans director or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiaryemployee;
(fn) Joint venture or partnership Contracts or Contracts entitling any Person to any profits, revenues or cash flows of any Acquired Company or requiring payments or other distributions based on such profits, revenues or cash flows;
(o) Contracts with the Company’s top 40 Customers by revenue;
(p) Contracts with Suppliers;
(q) outstanding powers of attorney empowering any Person to act on behalf of any Acquired Company;
(r) Contracts relating to any co-operative organization, franchise organization or similar organization;
(s) Contracts with any labor union affecting employees of Interactive or the SubsidiaryGovernmental Entity;
(gt) all partnership, joint venture, shareholders' or similar Employment Agreements;
(u) Contracts with any Personindependent contractor or consultants;
(hv) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhereMedical Provider Agreements; and
(jw) Contracts (other than those described in Subsections (a) through (v) of this Section 4.14) to which any Contracts Acquired Company is a party or by which otherwise any Acquired Company’s properties or assets are bound (i) involving an annual commitment or annual payment to or from the Company of more than $100,000 individually or (ii) that are material to the Condition of Interactive Acquired Companies, individually or in the Subsidiaryaggregate. True True, correct and correct complete copies of all Scheduled Company Contracts have been made available provided to ▇▇▇▇▇ and Advercommthe Purchaser. All of the Scheduled The Company Contracts are in full force and effect and constitute legal, valid valid, binding and binding obligations of Interactive and the Subsidiary enforceable in accordance with their respective terms with respect to Acquired Companies and, to the best knowledge Knowledge of Interactive and the SubsidiarySeller Parties, the each other parties party thereto; . There is no existing default or breach of any Acquired Company under any Company Contract (or event or condition that, with notice or lapse of time or both could constitute a default or breach) and, to the best Knowledge of Interactive's and the Subsidiary's knowledgeSeller Parties, there is no circumstances exist which would give rise such default (or event or condition that, with notice or lapse of time or both, could constitute a default or breach) with respect to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsto any Company Contract. None of the Acquired Companies is participating in any discussions or negotiations regarding modification of or amendment to any Company Contract or entry in any new Contract.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant Section 2.14 of the Disclosure Schedule lists the following agreements (written or oral) to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company Seller or any Subsidiary to maintain specified financial ratios or levels is a party as of net worth or other indicia the date of financial condition;this Agreement:
(i) any Contracts agreement (or group of related agreements) for the lease of personal property from or to third parties providing for lease payments in excess of $1,000 per annum or having a remaining term longer than 12 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 restrict Interactive calls for performance over a period of more than one year, (B) which involves more than the sum of $10,000, or (C) in which the Seller or any Subsidiary has granted manufacturing rights, "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 or has agreed to purchase goods or services exclusively from freely engaging 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 it 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) a Security Interest on any of its assets, tangible or intangible;
(v) any agreement for the disposition of any significant portion of the assets or business of the Seller or any Subsidiary (other than sales of products in the Ordinary Course of Business) or any agreement for the acquisition of the assets or business of any other entity (other than purchases of inventory or competing anywherecomponents in the Ordinary Course of Business);
(vi) any agreement concerning confidentiality or noncompetition;
(vii) any employment or consulting agreement;
(viii) any agreement involving any current or former officer, director or member of the Seller or an Affiliate thereof;
(ix) any agreement under which the consequences of a default or termination would reasonably be expected to have a Seller Material Adverse Effect;
(x) any agreement which contains any provisions requiring the Seller or any Subsidiary to indemnify any other party (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business); and
(jxi) any Contracts which otherwise are material other agreement (or group of related agreements) either involving more than $10,000 or not entered into in the Ordinary Course of Business.
(b) The Seller has delivered to the Condition Buyer a complete and accurate copy of Interactive each agreement listed in Section 2.12 or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All Section 2.14 of the Scheduled Contracts are Disclosure Schedule, except as otherwise indicated in such Section 2.14 of the Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, valid, binding and enforceable and in full force and effect; (ii) for those agreements to which the Seller is a party, the agreement is assignable by the Seller to the Buyer without the consent or approval of any party (except as set forth in Section 2.3 and 2.14 of the Disclosure Schedule) and will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; and constitute legal, valid and binding obligations of Interactive and (iii) neither the Seller nor any Subsidiary andnor, to the best knowledge of Interactive the Seller, any other party, is in breach or violation of, or default under, any such agreement, and the Subsidiaryno event has occurred, the other parties thereto; is pending or, to the best knowledge of Interactive's and the Subsidiary's knowledgeSeller, no circumstances exist which is threatened, which, after the giving of notice, with lapse of time, or otherwise, would give rise to an Action (as defined in Section 2.13) against constitute a breach or default by Interactive or the Subsidiary in connection with any Scheduled Contract Seller or any default thereunder; and Subsidiary or, to the validityknowledge of the Seller, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third other party consentsunder such agreement.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or SCHEDULE 2.9 lists any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretofollowing:
(a) any Contracts pursuant to Each contract or commitment which Interactive or creates an obligation, on the Subsidiary, or another party thereto, is obligated to pay part of Acquired Corp in excess of fifty thousand dollars obligations created in the normal and usual course of business and not described in clauses ($50,000)b) through (k) below;
(b) Each written debt instrument, including, without limitation, any Contracts pursuant to which Interactive loan agreement, line of credit, promissory note, security agreement or the Subsidiary acquired the right to use any Intellectual Property (as defined other evidence of indebtedness, where Acquired Corp is a lender, borrower or guarantor, in Section 2.9 below) or information that is material to or necessary a principal amount in the business excess of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property$15,000;
(c) Each written contract or commitment restricting Acquired Corp from engaging in any Contracts line of business;
(d) Each written contract to which Acquired Corp is a party which contains a provision relating to a change in control of Acquired Corp that (i) permits the other than advances party thereto to modify in any material respect or to terminate such contract or (ii) requires notice to such other party of expenses such change in control of Acquired Corp;
(e) Each written contract or commitment in excess of $20,000 to employees which Acquired Corp is a party for any charitable contribution;
(f) Each written joint venture or partnership agreement to which Acquired Corp is a party;
(g) Each written distributorship, sales agency, sales representative, reseller or marketing, value added reseller, original equipment manufacturing, technology transfer, source code license or other license or other agreement containing the right to sublicense software and/or technology, in each case, to which Acquired Corp is a party;
(h) Each written agreement in excess of $20,000 to which Acquired Corp is a party with respect to any assignment, discounting or reduction of any receivables of Acquired Corp;
(i) Each agreement, option or commitment or right with, or held by, any third party to acquire any assets or properties of Acquired Corp having a value in excess of $20,000, except for contracts for the sale of inventory, machinery or equipment in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(dj) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees Each written employment or any Persons that beneficially own consulting contract entered into by Acquired Corp which iscurrently in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhereeffect; and
(jk) any Contracts Each supply agreement to which otherwise are Acquired Corp is a party Acquired Corp could not readily replace without a material impact on Acquired Corp. Except as set forth in Schedule 2.9, (i) to the Condition Best Knowledge of Interactive Acquired Corp, there are no oral contracts or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All commitments of the Scheduled Contracts types described in this Section 2.9 which create an obligation on the part of Acquired Corp which are individually in full force excess of $20,000 or in the aggregate in excess of $50,000, (ii) there are no contracts or commitments between Acquired Corp and effect any Affiliate or between Acquired Corp and constitute legalany Affiliate that is not listed on any other schedule, valid (iii) there are no contracts, commitments or arrangements between Acquired Corp and binding obligations any employee or between Acquired Corp and any employee which require the payment of Interactive and any compensation upon the Subsidiary andoccurrence of change in control of Acquired Corp, (iv) there are no contracts or arrangements to the best knowledge of Interactive and the Subsidiarywhich Acquired Corp is a party, except this Agreement, which require notice to, the consent of, or other parties thereto; than with respect to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary services provided in connection with the Merger, any Scheduled Contract payment of any compensation (whether as a penalty, liquidated damages or otherwise) to any party with respect to the Merger or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement hereby or require in the event of the termination of such contract or arrangement on or following the Effective Time, (v) there are no contracts to which Acquired Corp is a party which would create rights in any third party consentsPerson against Parent or any of its Affiliates (other than rights against Acquired Corp and as in effect on the Closing Date) and (vi) Acquired Corp has been duly authorized to enter into each of the contracts listed in 2.9 and each of the contracts listed in Section 2.9 is binding and enforceable in accordance with its terms.
Appears in 1 contract
Contracts. Interactive and (a) Except as set forth on Schedule 4.10(a), as of the Subsidiary are not parties date hereof, neither the Company nor any of its Subsidiaries is a party to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretoany:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts (A) change-in-control, severance or retention agreement or other compensatory agreement or policy under which restrict Interactive benefits will be increased or accelerated solely by the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition occurrence of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require (B) any other compensatory agreement (other than any agreement which may be terminated by either party “at-will” and which does not provide for any severance or termination-related payments or benefits other than as required by applicable Law);
(ii) agreement which obligates the Company or any of its Subsidiaries to indemnify any past or present directors, officers, trustees, employees and agents of the Company or any of its Subsidiary other than the charter and bylaws of the Company and any of the organizational documents of the Subsidiaries of the Company which have been provided to Parent prior to the date hereof;
(iii) agreement with any third party consentsrelating to the management and operation of any Company Properties;
(iv) agreement to forgive any Indebtedness for borrowed money of any Person to the Company or any Subsidiary;
(v) loan agreement, promissory note or other evidence of Indebtedness for borrowed money or any guarantees of Indebtedness;
(vi) loan to any Persons (other than a wholly owned Subsidiary of the Company), including any employees, by the Company or any of its Subsidiaries;
(vii) agreement which constitutes an interest rate cap, interest rate collar, interest rate swap or other contract or agreement relating to a hedging transaction;
(viii) agreement which restricts or purports to restrict the ability of the Company or any of its Subsidiaries (or any of its employees) to engage in any business activity in any geographic area or line of business, which purports to restrict the ability of the Company or any of its Subsidiaries (or any of its employees) to compete with any Person or which otherwise has the effect of prohibiting or restricting in any material respect any current business practice of any of them, any acquisition of material property by any of them, or the conduct of business by any of them (including confidentiality (other than as have been entered into in the ordinary course of business and which in any event are not material, individually or in the aggregate), non-compete, non-solicitation and restrictive covenant agreements);
(ix) agreement that (A) requires the Company or any of its Subsidiaries to purchase its total requirements of any product or service, including with respect to any geographic area, from a third party, or (B) grants any third party exclusivity or “most favored nation” status or similar preferential rights (including any right of first refusal or right of first offer);
(x) agreement which would reasonably be expected to prohibit or materially delay the consummation of the transactions contemplated hereby;
(xi) agreements pursuant to which the Company or any Subsidiary expects to make payments in excess of $20,000 to any third party during any twelve (12)-month period which is not terminable by the Company or such Subsidiary without penalty or further liability upon thirty (30) days’ notice or less;
(xii) agreements pursuant to which the Company or any Subsidiary reasonably expects to receive aggregate payments in excess of $20,000 during any twelve (12)-month period;
(xiii) agreement or commitment for capital expenditures other than in the ordinary course of business or as reflected in the operating cash flow budget of the Company delivered to Parent prior to the date hereof;
(xiv) any lease or sub-lease with respect to any real property other than the Company Properties, including any office space used in the operation of the Company or any Company Subsidiaries;
(xv) agreement pursuant to which the Company or any of its Subsidiaries licenses or is otherwise permitted by a third party to use any material Intellectual Property Rights (other than any “shrink wrap”, “commercially available software package”, or “click through” license);
(xvi) partnership, joint venture or any similar agreement;
(xvii) agreement for the sale of any assets that in the aggregate have a net book value on the books of the Company or any of its Subsidiaries of greater than $10,000 individually, or $50,000 in the aggregate, or which involves any pending or contemplated merger, consolidation or similar business combination transaction;
(xviii) acquisition or divestiture agreement containing representations, warranties, covenants, indemnities or other obligations (including “earn-out” or other contingent payment obligations) that are binding on the Company or any of its Subsidiaries after the Closing; or
(xix) agreement, the termination of which, as of the date hereof, would reasonably be expected to have a Company Material Adverse Effect.
(b) The Company has made available to Parent a true and complete copy of each contract listed on Schedule 4.10(a), together with all amendments and supplements thereto (collectively, the “Material Contracts”). The agreements listed on Schedule 4.10(b), together with the agreements listed on Schedule 4.10(a)(xi), constitute all agreements pursuant to which the Company or any Subsidiary expects to make payments to any third party after the Effective Time and which are not terminable by the Company or such Subsidiary without penalty or further liability upon thirty (30) days’ notice or less. There are no oral agreements which would constitute a Material Contract, except those described on Schedule 4.10(a).
(c) Each Material Contract is legal, valid, binding and enforceable against the Company and each of its Subsidiaries that is a party thereto and, to the Company’s Knowledge, each other party thereto, and is in full force and effect, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at Law). The Company and each of its Subsidiaries has performed in all material respects all obligations required to be performed by it prior to the date hereof under each Material Contract and, to the Company’s Knowledge, each other party thereto has performed in all material respects all obligations required to be performed by it under such Material Contract prior to the date hereof. With respect to the Material Contracts, neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any other party thereto, is in material default under any such Material Contract and no event has occurred that with notice or lapse of time or both would constitute a material violation, breach or default under any Company Material Contract. Neither the Company nor any of its Subsidiaries has received written notice of any material violation or default under any Company Material Contract.
Appears in 1 contract
Contracts. Interactive (a) Section 3.15 of the Company Disclosure Letter lists each Contract (other than Company Plans listed with respect to Section 3.10(a) and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts"Contracts entered into in connection with a Permitted Asset Disposition) of the following typestypes to which the Company or any of its Subsidiaries is a party:
(i) any Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K;
(ii) any Contract that materially limits the ability of the Company or any of its Subsidiaries (or, following the consummation of the Mergers and the other transactions contemplated by this Agreement, would limit the ability of Parent or any of its Subsidiaries, including the Surviving Company) to compete in any line of business or with any Person or in any geographic area, or that restricts the right of the Company and its Subsidiaries (or, following the consummation of the Mergers and the other transactions contemplated by this Agreement, would limit the ability of Parent or any of its Subsidiaries, including the Surviving Company) to sell to or purchase from any Person or to hire any Person, or that grants the other party or any third Person “most favored nation” status or any type of special discount rights;
(iii) any Contract with respect to the formation, creation, operation, management or control of a joint venture or partnership with another Person;
(iv) any Contract relating to Indebtedness incurred by the Company or any of its Subsidiaries, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)Permitted Indebtedness;
(bv) any Contracts pursuant to which Interactive Contract involving the acquisition or the Subsidiary acquired the right to use any Intellectual Property disposition, directly or indirectly (as defined by merger or otherwise), of assets or capital stock or other equity interests for aggregate consideration (in Section 2.9 belowone or a series of transactions) under such Contract of $500,000 or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts more (other than advances acquisitions or dispositions of expenses to employees inventory in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwisebusiness consistent with past practice);
(evi) any deferred compensation agreements, bonus, pension, profit sharing, stock option Contract (other than Contracts with employees and incentive plans individual independent contractors) that by its terms calls for aggregate payment or arrangements, hospitalization, medical receipt by the Company and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees its Subsidiaries under such Contract of Interactive or more than $500,000 over the Subsidiaryremaining term of such Contract;
(fvii) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary Contract pursuant to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require which the Company or any Subsidiary to maintain specified financial ratios or levels of net worth its Subsidiaries has continuing guarantee, “earn-out” or other indicia contingent payment obligations, in each case that could result in payments in excess of financial condition$500,000;
(iviii) any Contracts which restrict Interactive Contract that is a license agreement (including all regional licensing transactions), covenant not to sue agreement or the Subsidiary from freely engaging in business co-existence agreement or competing anywhere; and
(j) any Contracts which otherwise are similar agreement that is material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All business of the Scheduled Contracts are in full force Company and effect and constitute legalits Subsidiaries, valid and binding obligations of Interactive and the Subsidiary andtaken as a whole, to which the best knowledge Company or any of Interactive its Subsidiaries is a party and licenses in Intellectual Property owned by a third party or licenses out Intellectual Property owned by the Company or its Subsidiaries or agrees not to assert or enforce Intellectual Property owned by the Company or such Subsidiary, other than non-exclusive Contracts entered into in the other parties thereto; to ordinary course of business of the best of Interactive's Company consistent for past practices for generally commercially available services, software, and products;
(ix) any Contract that obligates the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract Company or any default thereunder; of its Subsidiaries to make (A) any loan, or (B) any capital commitment or expenditure, except, in the case of clause (B), in the ordinary course of business consistent with practice and in an aggregate amount not greater than $500,000;
(x) any Contract that requires a consent to or otherwise contains a provision relating to a “change of control” that would or would reasonably be expected to prevent, materially delay or impair the validity, effectiveness and continuation consummation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement Agreement; or
(xi) any Contract with a top ten (10) supplier of the Company based on aggregate amounts paid by the Company and its Subsidiaries during the twelve (12)-month period ended December 31, 2023 or require a top five (5) customer of the Company based on revenue earned during the twelve (12)-month period ended December 31, 2023. Each contract of the type described in clauses (i) through (xi) is referred to herein as a “Material Contract.”
(b) Each Material Contract is valid and binding on the Company and each of its Subsidiaries party thereto (as applicable) and, to the knowledge of the Company, any third other party consentsthereto. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is no default under any Material Contract by the Company or any of its Subsidiaries party thereto or, to the knowledge of the Company, any other party thereto, and no event has occurred that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries party thereto or, to the knowledge of the Company, any other party thereto.
Appears in 1 contract
Contracts. Interactive Section 3.2(p) of the Disclosure Schedule lists the following contracts and other agreements to which any of the Subsidiary are not parties toCompany or its Subsidiaries is a party:
(i) any agreement (or group of related agreements) for the consignment or lease of machinery, nor is Interactiveequipment or other personal property to or from any Person providing for lease payments in excess of $50,000 per annum;
(ii) any agreement (or group of related agreements) for the purchase or sale of raw materials, products, machinery, equipment or other personal property, or for the furnishing or receipt of services, the Subsidiaryperformance of which will extend over a period of more than one year or, other than with respect to standard form purchase orders entered into in the Ordinary Course of Business for the purchase of raw materials or supplies, involve consideration in excess of $50,000 per annum;
(iii) any pledge, conditional sale or title retention agreement involving the payment of more than $50,000 in the aggregate;
(iv) any agreement concerning a partnership or joint venture;
(v) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, any mortgage, indenture, note, bond or other agreement relating to indebtedness incurred or provided by the Company or any of the Subsidiaries, or any of their assets or properties bound bycapitalized lease obligation, or subject toin each case, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars $100,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
($50,000vi) any agreement concerning confidentiality or noncompetition with the effect of prohibiting the Company or any of its Subsidiaries from freely engaging in any business;
(vii) any material agreement with any of the Sellers and their Affiliates (other than the Company and its Subsidiaries);
(bviii) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiaryprofit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or pursuant to which Interactive other material plan or CONFORMED COPY arrangement for the Subsidiary has granted to others the right to usebenefit of its current or former directors, officers, or which otherwise relates to, its Intellectual Propertyemployees;
(cix) any Contracts material license, royalty or other agreement relating to the Company Proprietary Rights;
(other than advances x) except as provided under subsection (v) above, any agreement containing commitments of expenses to employees suretyship, guarantee or indemnification (except for guarantees, warranties and indemnities provided by the Company or any Subsidiary in the ordinary course of business) involving loansbusiness and those having a contract value, loan agreements, debt securities, mortgages, deeds individually or in the aggregate of trust, security agreements, suretyships $25,000 or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwiseless);
(exi) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiaryagreement involving a governmental body;
(fxii) any Contracts with any labor union affecting employees of Interactive or the Subsidiarycollective bargaining agreement;
(gxiii) all partnershipany agreement for the employment of any individual on a full-time, joint venturepart-time, shareholders' consulting, or similar Contracts with any Personother basis providing annual compensation in excess of $50,000 or providing material severance benefits;
(hxiv) all Contracts that limit any agreement under which the consequences of a default or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditiontermination could have a Material Adverse Effect;
(xv) any other agreement (or group of related agreements) the performance of which involves consideration in excess of $50,000; or
(xvi) any commitment to do any of the foregoing described in clauses (i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
through (j) any Contracts which otherwise are material xvi). The Sellers have delivered to the Condition Buyer a correct and complete copy of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All each written agreement listed in Section 3.2(p) of the Scheduled Contracts are Disclosure Schedule (as amended to date) and a written summary setting forth the material terms and conditions of each oral agreement referred to in Section 3.2(p) of the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding, enforceable, and in full force and effect in all material respects and will continue to be so following the Closing; (B) no party is in material breach or default, and no event has occurred which with notice or lapse of time would constitute legala material breach or default, valid and binding obligations of Interactive and or permit termination, modification, or acceleration, under the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunderagreement; and (C) no party has repudiated any material provision of the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsagreement.
Appears in 1 contract
Contracts. Interactive and (a) BAYOU ROAD has disclosed or will disclose prior to Closing each of the Subsidiary are not parties to, nor following Contracts to which BAYOU ROAD or any of its Subsidiaries is Interactive, the Subsidiary, a party or by or to which BAYOU ROAD or any of its Subsidiaries or any of their respective assets or properties is bound byor subject, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") in each case as of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretodate hereof:
(ai) agreements, other than corporate customer agreements, involving at least $10,000 of obligations or benefits; than standard employment agreements or arrangements and employee benefit plans.
(ii) customer agreements with the ten (10) largest customers.
(iii) material agreements between BAYOU ROAD or any Contracts of its Subsidiaries, on the one hand, and a customer, vendor or supplier, on the other hand;
(iv) agreements (including written settlement agreements) currently in effect pursuant to which Interactive BAYOU ROAD or the Subsidiary, or another party thereto, is obligated to pay in excess any of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired its Subsidiaries licenses the right to use any Intellectual Property (as defined hereinafter defined) to any person or from any person (indicating which of the BAYOU ROAD or its Subsidiaries is currently party to such agreement);
(v) agreements with any committee or organization of, or representing, customers;
(vi) employment, severance and consulting agreements with any current or former director, officer or employee which provide for continuing obligations on the part of BAYOU ROAD or any of its Subsidiaries;
(vii) agreements with any labor union or similar association representing any employee;
(viii) agreements for the sale or lease (as lessor) by BAYOU ROAD or any of its Subsidiaries of any assets or properties (other than automobiles) in excess of $10,000 per agreement;
(ix) agreements relating to the acquisition or lease (as lessee) by the BAYOU ROAD or any of its Subsidiaries of any assets or properties in excess of $10,000 per agreement;
(x) agreements relating to the disposition or acquisition of any ownership interest in any person with a book value of $10,000 or more;
(xi) joint venture, partnership or similar agreements;
(xii) agreements that materially limit or purport to materially limit the ability of BAYOU ROAD or any of its Subsidiaries to compete in any line of business or with any person or in any geographical area or during any period of time;
(xiii) agreements relating to the incurrence of more than $10,000 of Indebtedness by BAYOU ROAD or any of its Subsidiaries or restricting the ability of BAYOU ROAD or any of its Subsidiaries to incur Indebtedness;
(xiv) agreements relating to any Guarantee Obligations (as hereinafter defined) of BAYOU ROAD or any of its Subsidiaries involving more than $10,000 (other than indemnities made in the ordinary course of business which are not material to BAYOU ROAD and its Subsidiaries taken as a whole);
(xv) agreements relating to the making of any loan or advance by BAYOU ROAD or any of its Subsidiaries other than (x) inter BAYOU ROAD loans among BAYOU ROAD and its wholly owned Subsidiaries and (y) those made in the ordinary course of business which are not in excess of $10,000;
(xvi) agreements providing for the indemnification by BAYOU ROAD or any of its Subsidiaries to any person except those entered into in the ordinary course of business which are not material to BAYOU ROAD, and its Subsidiaries taken as a whole;
(xvii) agreements with any Governmental Entity except those entered into in the ordinary course of business which are not material to BAYOU ROAD, and its Subsidiaries taken as a whole and other than tax audit agreements; and
(xviii) other material Contracts.
(b) There have been delivered or made available, or will be made available to Principal Solar, Inc. true and complete copies of all of the written agreements listed in Section 2.9 below) 3.9 and a written summary of all of the oral agreements, if any, listed in Section 3.9. Each material Contract to which BAYOU ROAD or information that any of its Subsidiaries is material a party or by or to which BAYOU ROAD or any of its Subsidiaries or any of their respective assets or properties is bound or subject is in full force and effect and constitutes a legal, valid and binding obligation of BAYOU ROAD or one of its Subsidiaries, as the case may be, and, to the knowledge of BAYOU ROAD, of each other party thereto, enforceable against BAYOU ROAD or one of its Subsidiaries, as the case may be, in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and similar laws relating to or necessary affecting creditors' rights generally and general equitable principles (whether considered in a proceeding in equity or at law). Neither BAYOU ROAD nor any of its Subsidiaries has received any written notice (x) that any such material Contract is not enforceable against any party thereto or (y) of early termination or intention to early terminate from any other party to any such material Contract. Except as otherwise disclosed, neither BAYOU ROAD or any of its Subsidiaries nor, to the business knowledge of Interactive BAYOU ROAD, any other party to any such material Contract is in material breach of or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;material default under any such material Contract.
(c) As used in this Agreement, "Indebtedness" means, as to any Contracts person (a) all indebtedness of such person for borrowed money or for the deferred purchase price of property or services (other than advances current trade liabilities incurred in the ordinary course of expenses business and payable in accordance with customary practices), (b) any other indebtedness of such person which is evidenced by a note, bond, debenture or similar instrument, (c) all obligations of such person in respect of acceptances issued or created for the account of such person and (d) all liabilities secured by any Lien on any property owned by such person even though such person has not assumed or otherwise become liable for the payment thereof. As used in this Agreement, "Guarantee Obligation" means any obligation of (a) the guaranteeing person or (b) another person (including, without limitation, any bank under any letter of credit) to employees induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any debt, leases, dividends or other obligations (the "primary obligations") of any other third person (the "primary obligor") in any manner, whether directly or indirectly, including, without limitation, any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of securing the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of such primary obligation against loss in respect thereof, provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consents.
Appears in 1 contract
Contracts. Interactive and Section 5(h) of the Subsidiary Disclosure Schedule sets forth the --------- following agreements or contracts, whether oral or written, to which Sellers are not parties to, nor is Interactive, the Subsidiary, a party or by which Sellers or any of their assets or properties bound bythe Assets are bound, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of other than the following types, except for those (the "Scheduled Contracts") listed agreements and contracts described in Part 2.8 of Schedule II hereto:Exhibit 1(b)(iii): -----------------
(ai) any Contracts pursuant to which Interactive employment contract or the Subsidiary, consulting agreement with any consultant or another party thereto, is obligated to pay employee earning more than $75,000 per year or having a term in excess of fifty thousand dollars twelve months other than those that are or at the Closing will be terminable by a Seller at will and without payment of any penalty or severance thereunder;
(ii) any lease of Equipment or other personal property involving payment by a Seller of annual rental in excess of $50,00030,000 or any series of leases for substantially similar types of Equipment or other personal property involving payment by a Seller of annual aggregate rentals in excess of $30,000;
(iii) any contract, agreement or commitment for the purchase of Equipment involving the expenditure by a Seller of more than $10,000 individually or $25,000 in the aggregate for related purchases;
(iv) any contract or agreement evidencing or related to indebtedness for borrowed money (other than Purchase Orders for raw material and inventory);
(bv) any Contracts pursuant to which Interactive commission or broker contract with a commission or brokerage structure providing for sales requirements for the Subsidiary acquired the right to use any Intellectual Property (as defined Business' products in Section 2.9 below) or information that is material to or necessary in the business excess of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property$20,000 annually;
(cvi) any Contracts (contract, agreement or commitment to sell, lease or otherwise dispose of any Assets other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guaranteesBusiness;
(dvii) any Contracts between Interactivecontract, on the one hand, and agreement or commitment with any affiliate of its officers, directors, employees Sellers or any Persons that beneficially own in excess director or officer of 10.0% Sellers or, to the Knowledge of the outstanding equity interest (each a "Principal Owner") of InteractiveSeller, or any Affiliate or relative, or Affiliate of a relative, affiliate of any of the foregoing, on the other; such director or officer ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, other than employment agreements and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwiseSeller's Plans);
(eviii) any deferred compensation agreementscontract or agreement purporting to limit the freedom of Sellers to compete in the Business, bonusin any geographic area or with any person, pensionexcept for commission or broker contracts or agreements with distributors or sales representatives disclosed in paragraph (xi) below, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or except as set forth in the SubsidiaryLicenses disclosed on Schedule 2(a)(x);
(fix) any Contracts with any labor union affecting employees contract, agreement or commitment to use the intellectual property of Interactive or non-Sellers which involves payments by Sellers after the SubsidiaryClosing Date in excess of $25,000;
(gx) all partnershipany contract, joint venture, shareholders' agreement or similar Contracts with any Personcommitment which relates primarily to sales agency or distributorship;
(hxi) all Contracts that limit any contract, agreement or contain restrictions on the ability of Interactive or the Subsidiary commitment, other than distributorship agreements, pursuant to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire which any of its capital stock or require Sellers have licensed any of the Company or any Subsidiary Intellectual Property to maintain specified financial ratios or levels of net worth or other indicia of financial conditionthird parties;
(ixii) any Contracts contract, agreement or commitment which restrict Interactive relates to partnership, strategic alliance, joint venture or the Subsidiary from freely engaging in business other similar arrangements involving sharing of profit or competing anywhereexpenses; and
(jxiii) any Contracts which otherwise are material to the Condition of Interactive contract, agreement or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All commitment not of the Scheduled Contracts type covered by any of the foregoing subsections (i) through (xii) which have a remaining term exceeding one year, except for those which by their terms are in full force or at the Closing will be terminable by a Seller at will or on 90 or fewer days' notice and effect without payment of any penalty or premium thereunder and constitute legalexcept for those which involve aggregate payments per contract, valid and binding obligations agreement or commitment of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against $10,000 or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsless.
Appears in 1 contract
Contracts. Interactive and (i) Schedule 4.1(x) attached hereto lists the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, following agreements (written or oral (collectively, "Contracts"oral) to which the Purchaser is a party as of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 date of Schedule II heretothis Agreement:
(aA) any Contracts pursuant agreement (or group of related agreements) for the lease of personal property from or to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)third parties;
(bB) any Contracts pursuant to agreement (or group of related agreements) for the purchase or sale of products or for the furnishing or receipt of services (A) which Interactive or calls for performance over a period of more than one year, (B) which involves more than the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business sum of Interactive or the Subsidiary$5,000, or pursuant to (C) in which Interactive or the Subsidiary Purchaser has granted manufacturing rights, "most favored nation" pricing provisions or exclusive marketing or distribution rights relating to others the right any products or territory or has agreed to use, purchase a minimum quantity of goods or which otherwise relates to, its Intellectual Propertyservices or has agreed to purchase goods or services exclusively from a certain party;
(cC) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships agreement establishing a partnership or guaranteesjoint venture;
(dD) any Contracts between Interactiveagreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $5,000 or under which it has imposed (or may impose) a Lien on the one hand, and any of its officersassets, directorstangible or intangible;
(E) any agreement concerning confidentiality or noncompetition;
(F) any employment or consulting agreement;
(G) any agreement involving any officer, employees director or any Persons that beneficially own in excess of 10.0% stockholder of the outstanding equity interest (each a "Principal Owner") of Interactive, Purchaser or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise)thereof;
(eH) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans agreement under which the consequences of a default or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiarytermination would reasonably be expected to have a Purchaser Material Adverse Effect;
(fI) any Contracts with agreement which contains any labor union affecting employees of Interactive or provisions requiring the Subsidiary;
Purchaser to indemnify any other party thereto (g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on excluding indemnities contained in agreements for the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem sale or otherwise acquire any license of its capital stock or require products entered into in the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhereOrdinary Course); and
(jJ) any Contracts which otherwise are material to other agreement (or group of related agreements) either involving more than $5,000 or not entered into in the Condition of Interactive Ordinary Course.
(ii) The Purchaser has delivered or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ the Corporation a complete and Advercommaccurate copy of each agreement listed in Schedule 4.1(x) attached hereto. All of With respect to each agreement so listed: (i) the Scheduled Contracts are agreement is legal, valid, binding and enforceable and in full force and effect; (ii) the agreement will continue to be legal, valid, binding and enforceable and in full force and effect immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the Closing; and constitute legal, valid and binding obligations of Interactive and (iii) neither the Subsidiary andPurchaser nor, to the best knowledge of Interactive the Purchaser, any other party, is in breach or violation of, or default under, any such agreement, and the Subsidiaryno event has occurred, the other parties thereto; is pending or, to the best knowledge of Interactive's and the Subsidiary's knowledgePurchaser, no circumstances exist which is threatened, which, after the giving of notice, with lapse of time, or otherwise, would give rise to an Action (as defined in Section 2.13) against constitute a breach or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require Purchaser or, to the knowledge of the Purchaser, any third other party consentsunder such contract.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts"a) Section 4.5(a) of the Disclosure Letter lists all the following typesAssumed Contracts (any Contract set forth or required to be set forth on Section 4.5(a) of the Disclosure Letter, except for those (collectively, the "Scheduled “Assumed Material Contracts") listed in Part 2.8 of Schedule II hereto:”):
(ai) any Contract (x) with any of the customers listed on Section 4.15 of the Disclosure Letter or (y) which (together with all other material Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay with any such customer) accounted for in excess of fifty thousand dollars ($50,000)1 million of revenues in the most recent completed fiscal year;
(bii) any Contract (x) with the suppliers listed on Section 4.16 of the Disclosure Letter or (y) which (together with all other material Contracts pursuant to which Interactive or the Subsidiary acquired the right to use with such any Intellectual Property (as defined supplier) accounted for in Section 2.9 below) or information that is material to or necessary excess of $1 million of expenditures in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertymost recent completed fiscal year;
(ciii) any Contract involving any agency, marketing, licensing or sales arrangement relating to the Business involving payments (or guarantees of minimum payments or usage), other than Contracts listed under Section 4.5(a)(i) or Section 4.5(a)(ii), in excess of $250,000 in the most recent completed fiscal year;
(iv) any Contract concerning the establishment or operation of a partnership, joint venture or limited liability company;
(v) any Contract for the disposition of a material portion of the assets or business of Seller or any Other Seller related to the Business (other than advances sales of expenses to employees products in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds or any agreement related to the Business for the acquisition of trust, security agreements, suretyships the assets or guaranteesbusiness of any other entity (other than purchases of inventory or components in the ordinary course of business) that would be Purchased Assets hereunder if held by Seller or any Other Seller as of the Closing;
(dvi) any Contracts between InteractiveContract concerning noncompetition (other than noncompetition agreements entered into with Transferred Employees in the ordinary course of business) or restricting the operation of the Business in any geographic region or businesses, on the one handproduct or service;
(vii) any (A) employment agreement (other than “at will” employment agreements) or consulting agreement with any Transferred Employee, and any of its officersother than Non-U.S. Employees, directors, employees or any Persons that beneficially own providing for fixed annual cash compensation in excess of 10.0% $100,000 or any material severance or change-in-control or similar payment or benefit, or (B) collective bargaining agreement;
(viii) any settlement, conciliation or similar agreement with any Governmental Authority or any other Person, or pursuant to which any Seller or any Other Seller would reasonably be expected to be required after the date hereof to pay consideration in excess of $250,000 or that would reasonably be expected to restrict the operation of the outstanding equity interest Business from and after the Closing ;
(each a "Principal Owner"ix) of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; all material Transferred Business Intellectual Property Licenses ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, other than licenses for generally commercially available software and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwiseother licenses where total fees for which are less than $10,000);
(ex) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans Contract under which the consequences of a default or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive termination or the Subsidiaryexpiration without renewal would reasonably be expected to have a Seller Material Adverse Effect;
(fxi) any Contracts with any labor union affecting employees information technology agreement or similar Contract material to the operation of Interactive or the SubsidiaryBusiness’ data centers, including (A) the primary connectivity, bandwidth and/or telecommunications agreement for each data center, (B) the primary agreement relating to back-up and disaster recovery services for each data center, (C) the primary agreement for hardware maintenance and support for each data center, and (D) the primary agreement for software maintenance and support for each data center;
(gxii) all partnershipany Contract which contains any provisions requiring Seller or any Other Seller to indemnify any other party (excluding indemnities contained in agreements for the purchase, joint venturesale, shareholders' distribution or similar Contracts with any Personlicense of products or leases of real property entered into in the ordinary course of business for which, to the Company’s knowledge, there are not expected to be material Liabilities thereunder);
(hxiii) all Contracts that limit any Contract for the acquisition or contain restrictions on the ability disposition of Interactive any business containing any profit sharing arrangements or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition“earn-out” arrangements;
(ixiv) any Contracts Contract providing for or relating to indebtedness for borrowed money or material guarantees of any Liability of any Person other than Seller or any Other Seller;
(xv) any personal property leases which restrict Interactive involves payment or the Subsidiary provision of services to or from freely engaging Seller or any Other Seller of in business or competing anywhereexcess of $100,000 in any year; and
(jxvi) any Contracts other Contract the performance of which otherwise are material to the Condition of Interactive involves payment or the Subsidiary. True provision of services to or from Seller or any Other Seller of in excess of $1,000,000 in any year, excluding any Leases for Real Property.
(b) Seller has made available to Purchaser true and correct complete copies of all Scheduled Assumed Material Contracts, including any amendments thereto, and, as of the Closing, all Assumed Contracts have been made available entered into from and after the date hereof that would be Assumed Material Contracts if entered into on or prior to ▇▇▇▇▇ and Advercommthe execution hereof (which shall also are deemed “Assumed Material Contracts” solely for purposes of this Section 4.5(b)). All of the Scheduled Assumed Material Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary with respect to Seller or any Other Seller and, to the best knowledge of Interactive Seller, each other party thereto. Each Assumed Material Contract is assignable to Purchaser and/or its Designees without the consent or approval of any party (except as set forth in Section 4.5(b) of the Disclosure Letter) and will continue to be legal, valid, binding and enforceable against Seller or any Other Seller party thereto and, to the Subsidiaryknowledge of Seller, the all other parties thereto; thereto immediately following the Closing in accordance with the terms thereof as in effect immediately prior to the best Closing except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting the enforcement of Interactive's and the Subsidiary's knowledgecreditors’ rights generally, no circumstances exist which would give rise to an Action by general equitable principles (as defined regardless of whether enforceability is considered in Section 2.13a proceeding in equity or at law) against or by Interactive or the Subsidiary in connection with any Scheduled Contract implied covenant of good faith and fair dealing. Neither Seller or any Other Seller nor, to the knowledge of Seller, any other party, is in breach or violation of, or default thereunder; under, any such Assumed Material Contract, and no event has occurred, is pending or, to the validityknowledge of Seller, effectiveness and continuation is threatened, which, after the giving of all Scheduled Contracts will notice, with lapse of time, or otherwise, would constitute a material breach or default under such Assumed Material Contract.
(c) Notwithstanding the foregoing, this Section 4.5 shall not be adversely affected apply to Real Property (which is covered by the transactions contemplated by this Agreement or require any third party consentsSection 4.4).
Appears in 1 contract
Contracts. Interactive Set forth on Schedule 3.12 is a true and complete list of all of the Subsidiary are not parties to, nor is Interactivefollowing Contractual Obligations of the Acquired Companies or Rave and its Subsidiaries with respect to the Acquired Assets, the Subsidiary, Acquired Theatres or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral the Acquired Business (collectively, "Contracts"the “Acquired Company Contractual Obligations”):
3.12.1. all Contractual Obligations involving consultants;
3.12.2. all Contractual Obligations (or groups of related Contractual Obligations) 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, or the lease of equipment, in each case, which will provide for annual payments to or by an Acquired Company in excess of $250,000 or, following typesthe Closing, except aggregate payments to or by an Acquired Company in excess of $500,000;
3.12.3. all Contractual Obligations under which an Acquired Company has or will have after the Closing any material liability or obligation to or for those the benefit of Rave, any Subsidiary of Rave that is not an Acquired Company, any member of Rave or any Affiliate of any such member of Rave (other than other Acquired Companies);
3.12.4. all Contractual Obligations under which the "Scheduled Contracts") listed Acquired Companies have any liability or obligation for any Debt, in Part 2.8 respect of Schedule II hereto:any standby letter of credit or which constitute a guarantee of any Debt or other obligation or liability of any other Person (other than another Acquired Company);
3.12.5. all Contractual Obligations under which the Acquired Companies are or may become obligated to pay any amount in respect of deferred or conditional purchase price, indemnification obligations, purchase price adjustment or otherwise in connection with any (a) acquisition or disposition of all or substantially all of the assets or securities constituting a line of business of any Contracts Person, (b) merger, consolidation or other business combination, or (c) series or group of related transactions or events of a type specified in subclauses (a) and (b);
3.12.6. all Contractual Obligations that limit or restrict any Acquired Company from competing in any business line or any geographic area;
3.12.7. any Contractual Obligation concerning or consisting of a partnership, limited liability company, joint venture or similar agreement;
3.12.8. any Contractual Obligation under which an Acquired Company is, or may become, obligated to pay any transaction or similar bonus or make any severance or termination payment by reason of this Agreement or the Contemplated Transactions;
3.12.9. any outstanding powers of attorney executed by or on behalf of any Acquired Company;
3.12.10. any Contractual Obligation pursuant to which Interactive or the Subsidiaryany Acquired Company licenses any Target IP, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)other than commercially available computer software programs licensed under standard form licenses;
(b) 3.12.11. any Contracts pursuant Contractual Obligation granting to which Interactive any Person an option or the Subsidiary acquired the a first refusal, first-offer or similar preferential right to use purchase or acquire any Intellectual Property (as defined in Section 2.9 below) property or information asset that is material to any Acquired Company; and
3.12.12. any Contractual Obligation under which any Acquired Company has advanced or necessary in the business of Interactive or the Subsidiary, or pursuant loaned an amount to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (Person other than advances of expenses to employees in the ordinary course of business) involving loans. Except as set forth on Schedule 3.12, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on each Acquired Company Contractual Obligation is the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations obligation of Interactive and the Subsidiary applicable Acquired Company party thereto, and, to the best knowledge Knowledge of Interactive and the SubsidiaryCompany, the other parties thereto; , enforceable against such Acquired Company and, to the best Knowledge of Interactive's the Company, the other parties in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally and the Subsidiary's knowledgegeneral principles of equity (whether considered in a proceeding at law or in equity). Except as set forth on Schedule 3.12, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against material breach or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated applicable Acquired Company under any Acquired Company Contractual Obligation has occurred and is continuing, and no event has occurred which, with notice or lapse of time or both, would constitute such a material breach or default. To the Knowledge of the Company, except as set forth on Schedule 3.12, no material breach or default by any other Person under any Acquired Company Contractual Obligation has occurred and is continuing, and no event has occurred which, with notice or lapse of time or both, would constitute such a material breach or default. The Company has delivered or made available to Buyer true, accurate and complete copies of each Acquired Company Contractual Obligation, in each case, as amended or otherwise modified and in effect on the date of this Agreement or require any third party consentsAgreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Carmike Cinemas Inc)
Contracts. Interactive and (a) Except as set forth on Section 5.17(a) of the Subsidiary are not parties toCompany Disclosure Letter, nor is Interactiveas of the date hereof, neither of the Subsidiary, Company or any of their assets its Subsidiaries is a party to or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretoby any:
(ai) Contract that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or disclosed by the Company on a Current Report on Form 8-K that has not been filed or incorporated by reference in the Company SEC Reports;
(ii) indenture, credit agreement, loan agreement, security agreement, guarantee, note, mortgage or other evidence of Indebtedness, in each case providing for Indebtedness in excess of $50,000,000, other than Indebtedness solely between or among any Contracts of the Company and any of its wholly owned Subsidiaries;
(iii) Collective Bargaining Agreement;
(iv) Contract that contains a put, call, right of first refusal or similar right pursuant to which Interactive the Company or any of its Subsidiaries would be required to purchase or sell, as applicable, any equity interests of any Person, other than any Contract disclosed under clause (viii) below entered into in the Subsidiaryordinary course of business and not having, or another that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect or a Company Impairment Effect;
(v) Contract to which the Company or any of its Subsidiaries is a party theretorelated to (A) licensing, is obligated use, or development of, or for, or grant any rights, immunity, license, or covenant not to pay sue to or under, any Material Company IP that has a maximum potential value (or which otherwise requires the receipt or making of payments) in excess of fifty thousand dollars $15,000,000 (including pursuant to any “earn-out,” contingent value rights, milestone payments, license fees, royalty payments, development costs or other contingent payment or value obligations), (B) that restricts the Company’s or any of its Subsidiaries’ ability to use or enforce any Material Company IP that is Company Owned IP, or (C) pursuant to which any material Computer Systems are licensed to the Company or any of its Subsidiaries (in each case of (A), (B), and (C), other than (i) pursuant to the Shareholder Agreement, (ii) pursuant to the Trademark Licensing Agreement or (iii) shrink-wrap, click-wrap and any other standard form licenses of uncustomized commercially available off-the-shelf software or Computer Systems granted to the Company or any of its Subsidiaries or Parent for annual payments of less than $50,0005,000,000);
(bvi) Contract that purports to bind the Company or any of its Subsidiaries or Affiliates or, at or after the Effective Time, Parent or any of its controlled Affiliates to any material (A) exclusivity provision in favor of the other parties thereto, (B) non-compete provision that limits, curtails or restricts the ability of such Person to compete or conduct activities in any geographic area or line of business or with any Person or (C) “most favored nation” provision in favor of the other parties thereto, in each case, that cannot be cancelled by the Company or one of its Subsidiaries without more than ninety (90) days’ notice without payment of a material penalty, other than, in each case, Contracts pursuant entered into the ordinary course of business and not having, or that would not reasonably be expected to which Interactive have, individually or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive aggregate, a Company Material Adverse Effect or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertya Company Impairment Effect;
(cvii) Contract that obligates the Company or any Contracts (of its Subsidiaries to make a loan, capital contribution to, or investment in excess of $10,000,000 in any Person, other than (i) loans to any Subsidiary of the Company and advances of expenses to employees in the ordinary course of businessbusiness and (ii) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guaranteesas provided for in any Contract disclosed under clause (viii) below;
(dviii) Contract that creates, governs or controls any Contracts partnership or joint venture or relates to an equity investment that is material to the business of the Company and its Subsidiaries, taken as a whole;
(ix) Contract that obligates the Company or any of its Subsidiaries to purchase or sell any material (A) electric energy, capacity and/or ancillary services or (B) renewable energy certificates, credits or other environmental attributes associated with renewable generation other than any Contract that is on file with FERC, the Connecticut Public Utilities Regulatory Authority, the Massachusetts Department of Public Utilities, the New York Public Service Commission or the Maine Public Utilities Commission; or
(x) other Contract (other than this Agreement, purchase orders for the purchase of inventory or agreements (A) between Interactive, on the one hand, Company and any of its officers, directors, employees Subsidiaries or (B) between any Persons that beneficially own of the Company’s Subsidiaries or disclosed on Section 5.17(a)(i)-(ix) of the Company Disclosure Letter) under which the Company and its Subsidiaries are obligated to make or receive payments in excess of 10.0% $25,000,000 during the fiscal year ending December 31, 2024 that cannot be cancelled by the Company or one of its Subsidiaries without more than ninety (90) days’ notice without payment of a material penalty (other than Contracts entered into in the ordinary course of business). Each such Contract set forth on Section 5.17(a) of the outstanding equity interest Company Disclosure Letter under (each i) through (x) is referred to herein as a "Principal Owner"“Company Material Contract.”
(b) Except as has not had or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect or a Company Impairment Effect or as set forth on Section 5.17(b) of Interactivethe Company Disclosure Letter, or any Affiliate or relative, or Affiliate of a relative, of any of (i) neither the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire Company nor any of its capital stock Subsidiaries is (and, to the Knowledge of the Company, no other party is) in default under or require breach of any Company Material Contract, there are no events or conditions, including with respect to any events or conditions as a result of COVID-19, which constitute, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any Subsidiary to maintain specified financial ratios of its Subsidiaries or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All Knowledge of the Scheduled Company, any counterparty, other than Parent, under such Company Material Contract, (ii) each of the Company Material Contracts are is in full force and effect and constitute legalis a valid, valid binding and binding enforceable obligation of the Company and its Subsidiaries, except (A) that such enforcement may be subject to the Bankruptcy and Equity Exception, (B) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought, and (C) to the extent that any Company Material Contract expires in accordance with its terms, (iii) the Company and its Subsidiaries have performed all respective material obligations required to be performed by them to date under the Company Material Contracts to which they are a party, and (iv) neither the Company nor any of Interactive and the Subsidiary its Subsidiaries has received any written notice of termination with respect to, and, to the best knowledge Knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledgeCompany, no circumstances exist which would give rise party has threatened in writing to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with terminate, any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsCompany Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Avangrid, Inc.)
Contracts. Interactive and Except as set forth in the Subsidiary are not parties SEC Documents or ss. 3(n) of the Disclosure Schedule, neither Summit nor any of its Subsidiaries is a party to:
(i) any agreement (or group of related agreements) for the lease of personal property to or from any Person providing for lease payments in excess of $50,000 per annum;
(ii) any agreement concerning a partnership or joint venture;
(iii) any agreement (or group of related agreements) under which it has created, nor is Interactiveincurred, the Subsidiaryassumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of their assets $50,000 or properties bound byunder which it has imposed a Security Interest on any of its assets, tangible or intangible;
(iv) any agreement concerning confidentiality or noncompetition;
(v) to Summit's Knowledge, any agreement with any holder (or Affiliate thereof) of 5% or more of any class of securities of Summit or any of its Subsidiaries;
(vi) any profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or subject toother material plan or arrangement for the benefit of its current or former directors, any contractsofficers, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements employees or understandings, written or oral (collectively, "Contracts"consultants that is not listed in ss. 3(s) of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:Disclosure Schedule;
(avii) any Contracts pursuant to which Interactive or collective bargaining agreement;
(viii) any agreement for the Subsidiaryemployment (other than at-will employment) of any individual on a full-time, part-time, consulting, or another party thereto, is obligated to pay other basis providing annual compensation in excess of fifty thousand dollars ($50,000)50,000 or providing severance benefits;
(bix) any Contracts pursuant agreement under which it has advanced or loaned any amount to any of its directors, officers, employees or consultants;
(x) any agreement or license relating in whole or in part to the Intangible Property of Summit (including, without limitation, any agreement or license under which Interactive or the Subsidiary acquired Summit has the right to use any Intellectual Intangible Property (as defined in Section 2.9 belowowned or held by a third party) or information that which is material to the business, financial condition or necessary in the business results of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts operations of Summit (other than advances of expenses standard licenses for software that is commercially available to employees the public in the ordinary course Ordinary Course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwiseBusiness);
(exi) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans agreement under which the consequences of a default or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiarytermination could have a Summit Material Adverse Effect;
(fxii) any Contracts with any labor union affecting employees agreement pursuant to which material benefits accrue to the other party or parties to such contract as a result of Interactive the transactions contemplated by this Agreement, including, without limitation, rights of termination or the Subsidiarymodification of such agreements;
(gxiii) all partnership, joint venture, shareholders' any agreement (or similar Contracts with any Person;
(hgroup of related agreements) all Contracts that limit the performance of which involves payment to or contain restrictions on the ability of Interactive by Summit or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock Subsidiaries (individually or require collectively) in excess of $50,000 per annum, except for insurance policies issued by the Company or any Subsidiary to maintain specified financial ratios or levels Insurance Subsidiaries in the Ordinary Course of net worth or other indicia of financial condition;Business; or
(ixiv) any Contracts which restrict Interactive or other material agreement not made in the Subsidiary from freely engaging Ordinary Course of Business. Summit has delivered to Liberty a correct and complete copy of each written agreement listed in business or competing anywhere; and
(jss. 3(n) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are Disclosure Schedule and a brief written summary setting forth the terms and conditions of each oral agreement referred to in ss. 3(n) of the Disclosure Schedule. With respect to each such agreement and each agreement filed as a material contract with any SEC Documents: (A) the agreement is legal, valid, binding, enforceable, and in full force and effect; (B) the transactions contemplated hereby will not cause the agreement, to be illegal, invalid, non-binding, non-enforceable or not to be in full force and effect for the benefit of the Surviving Corporation on identical terms immediately subsequent to the Effective Time and constitute legalconsummation of such transactions contemplated hereby; (C) neither Summit, valid and binding obligations nor any of Interactive and the Subsidiary andits Subsidiaries, nor, to Summit's Knowledge, any other party, is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under the best knowledge agreement; (D) neither Summit nor any of Interactive and the Subsidiary, the other parties thereto; its Subsidiaries has delivered or received notice of a cancellation of or an intent to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereundercancel such agreement; and (E) no party has repudiated any provision of the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsagreement.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts"a) Except as set forth in Section 2.17(a) of the following typesDisclosure Schedule, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the SubsidiaryCompany is not a party to, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled bound by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;:
(i) any Contracts employment Contract, other than an “at will” employment Contract entered into in the Ordinary Course; any consulting Contract with an individual consultant that involves annual payments by the Company of more than $50,000 and that is not cancelable without penalty within 90 days; or any Contract to grant any severance or termination pay (in cash or otherwise) to any employee, officer or director;
(ii) any Contract of indemnification between the Company and any current or former officer or director of the Company;
(iii) any Contract or plan, including any stock option plan, stock appreciation rights plan or stock purchase plan, any of the benefits of which restrict Interactive will be increased, or the Subsidiary from freely engaging in business or competing anywhere; and
(j) vesting of benefits of which will be accelerated, by the occurrence of any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require the value of any third of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(iv) any fidelity or surety bond or completion bond;
(v) any lease of personal property requiring the payment of more than $25,000 in any twelve-month period;
(vi) any Lease Agreement;
(vii) any Contract of indemnification or guaranty, other than Contracts entered into in the Ordinary Course with customers, resellers, distributors, suppliers and licensors;
(viii) any Contract of indemnification with a customer in excess of $50,000 that (A) does not eliminate the Company’s potential liability for consequential or incidental damages or (B) place a cap on the potential liability of the Company under such Contract;
(ix) any Contract relating to capital expenditures and involving future payments in excess of $25,000 individually or $75,000 in the aggregate;
(x) any executory Contract relating to the disposition or acquisition by the Company of any assets outside the Ordinary Course or pursuant to which the Company has any material ownership interest in any business enterprise other than the Company’s Subsidiaries;
(xi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to the borrowing of money or extension of credit, other than accounts receivables and payables in the Ordinary Course;
(xii) any partnership, dealer, distribution, joint marketing, joint venture, strategic alliance, affiliate, development agreement or similar Contract involving payments in excess of $50,000 since January 1, 2011;
(xiii) any Contract to alter the Company’s interest in any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(xiv) any Contract to sell, license or distribute any of the Company Products or services or any of the Company’s technology, other than agreements with distributors, sales representatives or other resellers in the Ordinary Course;
(xv) any License Agreement; or
(xvi) other than customer purchase orders or other customer Contracts, any Contract that involves payment or receipt of in excess of $25,000 individually in any 12 month period and is not cancelable without penalty within 30 days.
(b) Section 2.17(b) of the Disclosure Schedule contains a list of the Company’s ten largest customers for each of the fiscal years ended January 31, 2010 and January 31, 2011 and sets forth opposite the name of each such customer the percentage of net revenue attributable to such customer. During the last 12 months, the Company has not received any written notice or written threat of termination from any of such customers that such customer intends or otherwise anticipates a termination of, or reduction of more than $50,000 per year in, the level of business with the Company.
(c) True and complete copies of each Contract required to be disclosed pursuant to Section 2.17(a) (each a “Material Contract” and collectively, the “Material Contracts”) have been made available to Parent. Each Material Contract is a valid and binding agreement of the Company and, to the Knowledge of the Company, of each other party consentsthereto, and is in full force and effect except to the extent it has previously expired in accordance with its terms.
(d) The Company has not, nor to the Knowledge of the Company any other party thereto has not, breached or violated any provisions of, or committed or failed to perform any act that, with or without notice, lapse of time or both, would constitute a default under the provisions of any Material Contract.
(e) Following the Effective Time, the Company will be permitted to exercise all of its rights under each Material Contract without the payment of any additional amounts or consideration other than ongoing obligations, fees, royalties or payments which the Company would otherwise be required to satisfy, perform or pay pursuant to the terms of such Contracts had the transactions contemplated by this Agreement not occurred.
(f) All outstanding indebtedness of the Company may be prepaid without penalty.
Appears in 1 contract
Sources: Merger Agreement (Compuware Corp)
Contracts. Interactive and (a) Neither the Subsidiary are not parties toCompany nor any of its subsidiaries is a party to or is bound by any executory:
(i) Contract with any officer, nor is Interactivedirector, Company Employee or member of the SubsidiaryCompany Board, or any service, operating or management agreement or arrangement with respect to any of their its assets or properties bound by(whether leased or owned), other than those that are terminable by the Company or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements of its subsidiaries on no more than thirty (30) days' notice without liability or understandings, written financial obligation to the Company or oral (collectively, "Contracts") any of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)its subsidiaries;
(bii) Contract or plan (including, without limitation, any stock option plan, stock appreciation right plan, equity based compensation plan or stock purchase plan) any Contracts pursuant to of the benefits of which Interactive will be increased, or the Subsidiary acquired vesting of benefits of which will be accelerated, by the right to use occurrence of any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in of the business of Interactive transactions contemplated by this Agreement, or the Subsidiary, or pursuant to value of any of the benefits of which Interactive or will be calculated on the Subsidiary has granted to others basis of any of the right to use, or which otherwise relates to, its Intellectual Propertytransactions contemplated by this Agreement;
(ciii) any Contracts (Contract of indemnification, guaranty or warranty other than advances any Contract of expenses to employees indemnification, guaranty or warranty entered into in connection with the sale, license or purchase of products or services in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(div) Contract containing any Contracts between Interactive, on covenant limiting in any respect the one hand, and right of the Company or any of its officers, directors, employees subsidiaries to engage in any line of business or to compete with any person or entity or granting any exclusive distribution rights;
(v) Contract currently in force relating to the disposition or acquisition by the Company or any Persons of its subsidiaries after the date of this Agreement of a material amount of assets outside the ordinary course of business, or pursuant to which the Company or any of its subsidiaries has acquired any material ownership interest in any person other than Company's subsidiaries;
(vi) dealer, distributor, joint marketing or development Contract under which the Company or any of its subsidiaries has continuing material obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any material Contract pursuant to which the Company or any of its subsidiaries has continuing material obligations to jointly develop any Intellectual Property that beneficially own will not be owned, in whole or in part, by the Company or any of its subsidiaries and which may not be canceled without penalty upon notice of ninety (90) days or less;
(vii) Contract to license any third party the right to manufacture or reproduce (other than copies of licensed software) any Company Product, service or technology or any Contract granting rights to a third party to sell or publicly distribute any Company Products, service or technology except agreements with distributors or sales representatives in the normal course of business cancelable without penalty upon notice of ninety (90) days or less and substantially in the form furnished or made available to Parent;
(viii) Contract to provide source code to any third party for any product or technology that is material to the Company and its subsidiaries, taken as a whole;
(ix) mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit;
(x) material settlement agreement under which the Company has ongoing obligations: or
(xi) Contract with a customer of the Company involving payments to the Company in excess of 10.0% $500,000 in any individual case or in the aggregate.
(b) Neither the Company nor any of its subsidiaries, nor to the knowledge of the outstanding equity interest Company, any other party to a Material Company Contract (each a "Principal Owner") as defined below), is in breach, violation or default under, and neither the Company nor any of Interactiveits subsidiaries has received written notice that it has breached, violated or defaulted under, any Affiliate of the terms or relative, or Affiliate of a relative, conditions of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power material Contracts to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require which the Company or any Subsidiary of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound (including, without limitation, the Contracts that are required to maintain specified financial ratios be set forth in the Company Schedule) (any such Contract, a "Material -------- Company Contract") in such a manner as would permit any other party to ---------------- cancel or levels of net worth terminate any such Material Company Contract, or would permit any other party to seek material damages or other indicia remedies (for any or all of financial condition;
(i) any Contracts which restrict Interactive such breaches, violations or defaults, in the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsaggregate).
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant Section 2.13 of the Disclosure Schedule lists the following agreements (written or oral) to which Interactive or the Subsidiary, or another Company is a party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") date of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;this Agreement:
(i) any Contracts agreement (or group of related agreements) providing for payments in excess of $10,000 per annum or having a remaining term longer than three 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 restrict Interactive calls for performance over a period of more than one year, (B) which involves more than the sum of $10,000 or (C) in which the Subsidiary Company 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 or has agreed to purchase goods or services exclusively from freely engaging in business a certain party;
(iii) any agreement establishing a partnership or competing anywherejoint venture;
(iv) any lease or sublease of real property;
(v) any agreement (or group of related agreements) under which it has created, incurred, assumed or guaranteed indebtedness or under which it has imposed (or may impose) a Security Interest on any of the Company's assets, tangible or intangible;
(vi) any agreement concerning confidentiality or noncompetition;
(vii) any employment or consulting agreement;
(viii) any agreement with any officer, director or stockholder of the Company or any affiliate thereof;
(ix) any agreement under which the consequences of a default or termination would reasonably be expected to have a Company Material Adverse Effect;
(x) any agreement which contains any provisions requiring the Company to indemnify any other party thereto; and
(jxi) any Contracts which otherwise are material other agreement (or group of related agreements) either involving more than $10,000 or not entered into in the Ordinary Course of Business.
(b) The Company has delivered to the Condition Buyer a complete and accurate copy of Interactive each agreement (as amended to date) listed in Section 2.12 or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All Section 2.13 of the Scheduled Contracts are Disclosure Schedule. With respect to each agreement so listed: (i) the agreement is legal, valid, binding and enforceable and in full force and effect and constitute legal, valid and binding obligations of Interactive and against the Subsidiary Company and, to the best knowledge of Interactive the Company, against any other party; and (ii) neither the SubsidiaryCompany nor, the other parties thereto; to the best knowledge of Interactive's the Company, any other party, is in material breach or violation of, or default under, any such agreement, and to the Subsidiary's knowledgeknowledge of the Company, no circumstances exist which event has occurred, is pending or is threatened, which, after the giving of notice, with lapse of time, or otherwise, would give rise to an Action (as defined in Section 2.13) against constitute a material breach or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require Company or, to the knowledge of the Company, any third other party consentsunder such contract.
Appears in 1 contract
Contracts. Interactive and Section 3.16 of the Subsidiary are not parties to, nor is Interactive, Disclosure Schedule lists each of the Subsidiary, following Contractual Obligations to which any Company Entity or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretoits Assets is bound:
(ai) any Contracts Contractual Obligation (or group of related Contractual Obligations) for the sale of products or services to a Top Customer or for the purchase of products or services from a Top Supplier other than purchase orders received in the Ordinary Course of Business;
(ii) any Contractual Obligation pursuant to which Interactive a partnership, joint venture or the Subsidiary, or another party thereto, is obligated any similar arrangement was established;
(iii) any Contractual Obligation under which a Company Entity has permitted any material Asset to pay in excess of fifty thousand dollars become Encumbered ($50,000other than by a Permitted Encumbrance);
(biv) any Contracts pursuant Contractual Obligation which imposes or purports to impose a restriction on the geographies or businesses in which Interactive any Company Entity or any of its Affiliates may operate the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual PropertyBusiness;
(cv) any Contracts Contractual Obligation which grants any exclusivity rights, rights of first refusal, rights of first negotiation or similar rights to any Person (other than advances of expenses to employees in the ordinary course of businessthis Agreement) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guaranteesunless terminable by such Company Entity at will without any Liability and on less than sixty (60) days’ notice;
(dvi) any Contracts between Interactive, on Contractual Obligation containing a “most favored nation” or similar pricing clause;
(vii) any Contractual Obligation providing for the one hand, and any of its officers, directors, employees employment or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, consultancy of any of the foregoingPerson on a full-time, on the other; part-time, consulting or other basis or otherwise providing compensation or other benefits to any officer, director, employee or consultant ("Affiliate" of other than a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwiseCompany Plan);
(eviii) any deferred compensation agreementsmaterial agency, bonusdealer, pensiondistributor, profit sharingsales representative, stock option marketing or other similar Contractual Obligation, unless terminable by any Company Entity at will without any Liability and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiaryon less than sixty (60) days’ notice;
(fix) any Contracts with Contractual Obligation that relates to the acquisition or disposition of any labor union affecting employees business (other than acquisitions or dispositions of Interactive inventory in the Ordinary Course of Business) or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Equity Interest of any Person;
(hx) all Contracts that limit any Contractual Obligation (or contain restrictions on group of related Contractual Obligations) the ability performance of Interactive or the Subsidiary to declare or pay dividendswhich mandates payment of consideration of any party thereto in excess of $250,000 per annum, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
than (i) any Contracts which restrict Interactive Contractual Obligation that is terminable by a Company Entity at will without material Liability and on less than sixty (60) days’ notice and (ii) purchase orders received in the Ordinary Course of Business;
(xi) any Contractual Obligation with Sellers’ Representative, any Seller or the Subsidiary from freely engaging in business an Affiliate of Sellers’ Representative or competing anywhereany Seller;
(xii) any Debt Contract; and
(jxiii) any Contracts which otherwise are material to the Condition of Interactive or the SubsidiaryReal Property Lease. True and correct copies of all Scheduled Contracts have been The Company has made available to ▇▇▇▇▇ and Advercomm. All the Buyer copies of each Contractual Obligation listed on Section 3.16 of the Scheduled Disclosure Schedule that are accurate and complete, in each case, as amended or otherwise modified and in effect. Each Contractual Obligation required to be disclosed on Section 3.16 of the Disclosure Schedule (the “Disclosed Contracts”) is Enforceable against each party to such Contractual Obligation and, subject to obtaining any necessary consents disclosed in Section 3.03 and Section 3.04 of the Disclosure Schedule, will continue to be so Enforceable following the consummation of the Contemplated Transactions. Except as set forth on Schedule 3.16, all of the Disclosed Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary andwritten. Neither Company Entity nor, to the best knowledge of Interactive and Company’s Knowledge, any other party to any Disclosed Contract is in breach or violation of, or default under, has repudiated any provision of, or has threatened to terminate, any Disclosed Contract. To the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledgeCompany’s Knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against event or by Interactive circumstance currently exists that, with notice or the Subsidiary lapse of time or both, would constitute an event of default under any Disclosed Contract in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsmaterial respect.
Appears in 1 contract
Sources: Securities Purchase Agreement (Pinnacle Foods Inc.)
Contracts. Interactive and (a) Section 5.7 of the Subsidiary are not parties to, nor Disclosure Schedule lists the following Contracts to which Pivotal is Interactive, the Subsidiary, a party or any of their by which its assets or properties may be bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, the "Material Contracts") in effect as of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 date of Schedule II heretothis Agreement:
(ai) any Contract or series of Contracts pursuant that Pivotal reasonably anticipates will, in accordance with its terms, involve aggregate payments by or to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)Pivotal;
(bii) any Contracts pursuant to which Interactive lease of real property or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business lease of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertypersonal property involving any annual expense;
(ciii) any Contract containing covenants materially limiting the freedom of Pivotal to engage in any line of business or compete with any Person;
(iv) any material distribution, franchise, license, sales, commission, consulting agency or advertising Contracts;
(v) all Contracts evidencing Liabilities;
(vi) all Contracts relating to the sale or disposition of properties or Assets of Pivotal (other than advances the sale of expenses to employees inventory in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(evii) each Contract to which any deferred compensation agreementsKey Employee of Pivotal is bound which in any manner purports to (A) restrict such employee's freedom to engage in any line of business or to compete with any other Person, bonusor (B) assign to any other Person rights to any material invention, pensionimprovement, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiarydiscovery related to Clinical Research Services;
(fviii) any all Contracts with any labor union affecting employees of Interactive or the Subsidiaryrelating to Intellectual Property Rights;
(gix) all partnershipeach joint venture Contract, joint venturepartnership agreement, shareholders' limited liability company or similar Contracts other Contract (however named) involving a sharing of profits, losses, costs, or liabilities by Pivotal with any other Person;
(hx) all Contracts that limit each Contract providing for payments to or contain restrictions by any Person or entity based on the ability of Interactive sales, purchases or the Subsidiary to declare or pay dividendsprofits, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionthan direct payments for goods;
(ixi) any Contracts which restrict Interactive each Contract providing for capital expenditures after the date hereof;
(xii) each written warranty, guaranty or other similar undertaking with respect to contractual performance extended by Pivotal other than in the Subsidiary from freely engaging in business or competing anywhereordinary course of business; and
(jxiii) any Contracts which otherwise are material each Loss Contract. Except as set forth in Section 5.7 of the Disclosure Schedules, Pivotal has delivered or made available to the Condition of Interactive or the Subsidiary. True Buyer true, correct and correct complete copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Material Contracts are listed on Section 5.7 of the Disclosure Schedule, including all amendments and supplements thereto.
(b) Except as set forth in Section 5.7 of the Disclosure Schedules, Pivotal is not (and Pivotal has received no notice, nor has any knowledge that any other party to any Material Contract is), in breach or violation of, or default under, any of the Material Contracts which, individually, involves claims, damages or Liabilities in excess of $5,000. Except as set forth in Section 5.7 of the Disclosure Schedule, each Material Contract is in full force and effect (and constitute legalwill remain in full force and effect upon consummation of the actions contemplated hereby) and is a valid agreement, arrangement or commitment of Pivotal, enforceable against Pivotal in accordance with its terms and is a valid agreement, arrangement or commitment of each other party thereto, enforceable against such party in accordance with its terms, except in each case where enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights generally and binding obligations of Interactive and the Subsidiary and, except where enforceability is subject to the best knowledge application of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against equitable principles or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsremedies.
Appears in 1 contract
Contracts. Interactive and (a) Section 3.16 of the Subsidiary are not parties toCompany Disclosure Schedule lists each of the following Contractual Obligations to which any Acquired Company is bound:
(i) any Contractual Obligation (or group of related Contractual Obligations) valued at over $1,000,000 for the sale of products or services or for the purchase of products or services which will, nor is Interactiveby its terms, extend over a period of more than one (1) year after the Subsidiarydate hereof;
(ii) any Contractual Obligation pursuant to which a material partnership or joint venture was established;
(iii) any Contractual Obligation made other than in the Ordinary Course of Business (x) providing for the grant of any preferential rights of first offer or first refusal to purchase or lease any material Asset of the Acquired Companies or (y) providing for any exclusive right to sell or distribute, or otherwise relating to the sale or distribution of, any product or service of their assets or properties bound bythe Acquired Company valued in excess of $500,000, in each case that is not freely terminable by the Acquired Companies on ninety (90) days’ notice;
(iv) any Contractual Obligation under which an Acquired Company has permitted any material Asset to become, or to become subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral an Encumbrance (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000other than by a Permitted Encumbrance);
(bv) any Contracts pursuant Contractual Obligation providing for the employment or consultancy of any Person on a full-time, part-time, consulting or other basis or otherwise providing Compensation or other benefits to which Interactive any officer, director, employee or the Subsidiary acquired the right to use any Intellectual Property consultant (as defined other than a Company Plan) in Section 2.9 below) or information that is material to or necessary in the business excess of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property$200,000 per year;
(cvi) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guaranteescollective bargaining agreement with any labor union;
(dvii) any Contracts between InteractiveContractual Obligation containing covenants that (A) restrict any Acquired Company from any solicitation, on hiring or engagement of any Person or the one hand, and solicitation of any customer or (B) limit the freedom of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, Acquired Company or any Affiliate thereof to engage in any line of business or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts compete with any Person;
(hviii) all Contracts that limit any outstanding general or contain restrictions special powers of attorney executed by or on behalf of an Acquired Company;
(ix) any Contractual Obligation under which an Acquired Company has advanced or loaned an amount to, or received a loan, note, or other instrument, agreement, or arrangement for or relating to the ability borrowing of Interactive or the Subsidiary to declare or pay dividendsmoney from, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock Affiliates, members, officers, managers, members of the board of directors, or require employees, other than in the Ordinary Course of Business;
(x) any Contractual Obligation (or group of related Contractual Obligations) the performance of which mandates payment of consideration in excess of $1,000,000 per annum over the remaining life of such Contractual Obligation, other than (A) any Contractual Obligation that is terminable by an Acquired Company at will without material liability and on less than ninety (90) days’ notice and (B) purchase orders received in the Ordinary Course of Business;
(xi) any guaranty by an Acquired Company or any Subsidiary to maintain specified financial ratios or levels Affiliate of net worth or any obligation of another, other indicia than in the Ordinary Course of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging Business and in business or competing anywhereexcess of $500,000; and
(jxii) any Contracts which otherwise are material obligation to the Condition of Interactive or the Subsidiary. True and correct register any Equity Interests with any Governmental Authority.
(b) The Acquired Companies have made available copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All each Contractual Obligation listed on Section 3.16 of the Scheduled Contracts Company Disclosure Schedule that are accurate and complete, in each case, as amended or otherwise modified and in effect. Each Contractual Obligation required to be disclosed on Section 3.16 of the Company Disclosure Schedule (the “Disclosed Contracts”) is in full force and effect and constitute legal, valid and binding obligations is enforceable against each party to such Contractual Obligation. None of Interactive and the Subsidiary andAcquired Companies nor, to the best knowledge of Interactive and the SubsidiaryCompany’s Knowledge, the any other parties thereto; party to the best of Interactive's and the Subsidiary's knowledgeany Disclosed Contract is in material breach or violation of, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive default under, or the Subsidiary in connection with has repudiated any Scheduled Contract or provision of, any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsDisclosed Contract.
Appears in 1 contract
Contracts. Interactive (a) Section 3.15(a) of the Disclosure Letter sets forth an accurate list of the following Contracts to which any Seller Company is a party or by which any Seller Company is bound that is primarily used in, or otherwise necessary for, the operation of the Business (collectively, the "Business Contracts"):
(i) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials by any Seller Company of an amount or value in excess of $50,000; provided, that Seller shall not be required to list any XTRAC customer Contract;
(ii) each Contract (other than purchase orders for Inventory) that involves performance of services or delivery of goods or materials to any Seller Company of an amount or value in excess of $25,000;
(iii) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the Subsidiary are not parties ownership of, leasing of, title to, nor is Interactive, the Subsidiaryuse of, or any of their assets leasehold or properties bound by, or subject toother interest in, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral personal property (collectively, "Contracts") except personal property leases and installment and conditional sales agreements having aggregate payments of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars (less than $50,000);
(biv) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any each Contract in respect of Business Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in licenses for shrinkwrap, clickwrap or other similar commercially available off-the-shelf software that has not been modified or customized by a third party for the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwiseBusiness);
(ev) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans each collective bargaining agreement and other employee compensation policies and agreements affecting employees of Interactive Contract to or the Subsidiary;
(f) any Contracts with any labor union affecting employees or other employee representative of Interactive or the Subsidiarya group of employees;
(gvi) all partnership, each joint venture, shareholders' partnership, and other Contract (however named) involving a sharing of profits, losses, costs, or similar Contracts liabilities by any Seller Company with any other Person;
(vii) any agreement relating to indebtedness for borrowed money or extensions of credit;
(viii) each Contract containing covenants that restrict the business activity of any Seller Company, including, but not limited to, any exclusivity covenants, or limit the freedom of any Seller Company to engage in any line of business or to compete with any Person;
(hix) all Contracts that limit any agreement providing for indemnification by any Seller Company, other than indemnification provided to customers or contain restrictions on vendors in the ability Ordinary Course of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionBusiness;
(ix) any Contracts which restrict Interactive employment or consulting Contract with any Business Employee, or any consultant or contractor of the Subsidiary from freely engaging in business Business, other than at-will arrangements that do not include severance or competing anywhere"change of control" provisions; and
(jxi) each amendment, supplement, and modification (whether oral or written) in respect of any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled foregoing.
(b) Except as set forth in Section 3.15(b) of the Disclosure Letter, as of the date hereof, all of the Business Contracts are in full force and effect and are enforceable in accordance with their terms except to the extent that such enforceability (i) may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to creditors' rights generally, and (ii) is subject to general principles of equity.
(c) Except as set forth in Section 3.15(c) of the Disclosure Letter, as of the date hereof, no Seller Company is in breach in any material respect of or default under (and to Sellers' Knowledge, no event has occurred which with notice or the passage of time or both would constitute legal, valid and binding obligations a breach in any material respect of Interactive and the Subsidiary andor default under) any Business Contract nor, to the best knowledge Sellers' Knowledge, is any other party to any such Business Contract in breach in any material respect of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsunder such Business Contract.
Appears in 1 contract
Contracts. Interactive Section 3.11 of the Schedules sets forth a list of each Material Contract, as of the date of this Agreement. “Material Contract” means any Contract to which any Seller or Acquired Entity, in all cases other than purchase orders or similar instruments and any Employee Benefit Plan, that: (i) relates to the Subsidiary formation, creation, governance, economics, or control of any joint venture, partnership or other similar arrangement with a third party (in 19 each case, other than Contracts entered into in the Ordinary Course and Organizational Documents of any Seller any Acquired Entity); (ii) provides for indebtedness for borrowed money of Sellers or the Acquired Entities having an outstanding or committed amount in excess of $100,000, in each case, other than for intercompany indebtedness among the Acquired Entities, letters of credit and credit terms extended to customers in the Ordinary Course and advancement of expenses made to employees and independent contractors in the Ordinary Course; (iii) relates to the acquisition or disposition of any business (whether by merger, sale of stock, sale of assets or otherwise) for aggregate consideration under such Contract in excess of $100,000 pursuant to which any earn-out, indemnification or deferred or contingent payment obligations remain outstanding that would reasonably be expected to involve payments by or to Sellers or the Acquired Entities of more than $100,000 after the date hereof (in each case, excluding acquisitions or dispositions of supplies, merchandise, Inventory, products, Equipment, properties or other assets in the Ordinary Course, or disposition of supplies, Inventory, merchandise, products, Equipment, properties or other assets that are not parties toobsolete, nor worn out, surplus or no longer used or useful in the conduct of the Business); (iv) is Interactivea Contract (other than purchase orders) pursuant to which Sellers or the Acquired Entities would reasonably be expected to make or receive payments of more than $100,000 during any fiscal year (other than intercompany indebtedness among the Acquired Entities); (v) contains any provision (A) limiting, in any material respect, the Subsidiaryright of Sellers or the Acquired Entities to engage in any business, compete with any Person, or operate anywhere in the world, or (B) granting any exclusivity right to any third party or containing a “most favored nation” provision in favor of any third party, in each case of clauses (A) and (B), other than (1) a Contract that can be terminated on 90 days’ notice or less without resulting in a breach or violation of, or any acceleration of their assets any rights or properties bound byobligations or the payment of any penalty under, such Contract, (2) Contracts entered into in the Ordinary Course granting exclusive rights to any Seller’s or subject toAcquired Entity’s services or containing “most favored nation” provisions with respect to any SEC’s or Acquired Entity’s, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements products or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a3) any Contracts pursuant provision in any agreements for Intellectual Property limiting any Seller’s and any of its Affiliates’ (including any Acquired Entity’s) use of such Intellectual Property to which Interactive specified fields of use or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars specified territories; ($50,000);
vi) contains a grant from (bA) any Contracts pursuant Seller and any of its Affiliates (including any Acquired Entity) to which Interactive a third party for a license or the Subsidiary acquired the right to use any material Acquired Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary other than nonexclusive licenses of Intellectual Property in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
Ordinary Course) and (cB) any Contracts (other than advances of expenses third party to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships any Seller or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officersAffiliates (including any Acquired Entity) for a license or right to use any material Intellectual Property owned by a third party, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest other than (each a "Principal Owner"1) of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consents.non-
Appears in 1 contract
Sources: Asset Purchase Agreement (Sunnova Energy International Inc.)
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of The Disclosure Schedule lists the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant contracts and other agreements to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;is a party:
(i) any Contracts which restrict Interactive agreement (or group of related agreements) for the Subsidiary lease of personal property (including without limitation software) to or from freely engaging any Person providing for lease payments in business or competing anywhere; andexcess of $10,000 per annum;
(jii) any Contracts agreement (or group of related agreements) for the purchase or sale of supplies, products or other personal property, or for the furnishing or receipt of services, the performance of which otherwise are will extend over a period of more than one year, result in a material loss to the Condition Company or, except for Contracts made in the Ordinary Course of Interactive Business, involve consideration in excess of $10,000;
(iii) any agreement concerning a partnership or joint venture or arrangement to share profits;
(iv) any agreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $10,000 or under which it has imposed a Security Interest on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or non-competition;
(vi) any agreement with any of the SubsidiarySeller and their Affiliates (other than the Company) or any members of their immediate families;
(vii) any profit sharing, share option, share purchase, share appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of its current or former directors, officers, and employees;
(viii) any collective bargaining agreement;
(ix) any agreement under which it has advanced or loaned any amount to any of its directors, officers, and employees or any members of their immediate families, excluding claims for reimbursement of expenses incurred in the Ordinary Course of Business;
(x) any agreement under which the consequences of a default or termination could have a Material Adverse Effect; or
(xi) any other agreement (or group of related agreements) which was not entered into in the Ordinary Course of the Business. True The Seller has delivered to the Buyer a correct and correct copies complete copy of each written agreement listed in the Disclosure Schedule (as amended to date), and to the Knowledge of the Seller, a written summary of the terms of all Scheduled Contracts have been made available oral agreements referred to ▇▇▇▇▇ in the Disclosure Schedule. With respect to each such agreement: (A) the agreement is legal, valid, binding, enforceable, and Advercomm. All of in full force and effect, subject to the Scheduled Contracts are Exception; (B) subject to obtaining the consents indicated in the Disclosure Schedule, the agreement will continue to be legal, valid, binding, enforceable, and in full force and effect and constitute legal, valid and binding obligations on identical terms immediately following the consummation of Interactive and the Subsidiary transactions contemplated hereby except for the Exception; (C) the Company is not in breach or default and, to the best knowledge Knowledge of Interactive the Seller, no other party is in breach or default of the agreement; (D) to the Knowledge of the Seller, no event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under the agreement; and (E) to the SubsidiaryKnowledge of the Seller, no party has repudiated any provision of the agreement. Without limiting the generality of the foregoing, the Company is in compliance with all covenants under all agreements with its bank and other parties thereto; to lenders except as referenced in the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsDisclosure Schedule.
Appears in 1 contract
Sources: Share Purchase Agreement (BPO Management Services, Inc.)
Contracts. Interactive Section 3.13 of the Disclosure Schedule lists the --------- following contracts and the Subsidiary are not parties towritten arrangements, nor is Interactive, the true and complete copies of which have been delivered to Buyer and ▇▇▇▇▇ Subsidiary, to which DSI or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretoSubsidiaries are a party:
(a) any Contracts pursuant contract for the lease of personal property from or to which Interactive or the Subsidiary, or another party thereto, is obligated to pay third parties providing for lease payments in excess of fifty thousand dollars ($50,000)25,000.00 per annum;
(b) any Contracts pursuant to contract for the purchase or sale of raw materials, commodities, supplies, products manufactured by DSI or its Subsidiaries or other personal property or for the furnishing or receipt of services which Interactive or contract calls for performance over a period of more than one year and which involves more than the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business sum of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property$25,000.00;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships partnership or guaranteesforeign joint venture agreement;
(d) any Contracts between Interactive, on agreement or instrument under which DSI or its Subsidiaries is or may become indebted for borrowed money in an amount individually or in the one hand, and any of its officers, directors, employees or any Persons that beneficially own aggregate in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other$50,000; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiarynon-competition agreement;
(f) any Contracts with any labor union affecting employees other contract or arrangement entered into other than the Ordinary Course of Interactive Business in which the consequences of a default or termination would have a materially adverse effect on the financial condition of DSI or its Subsidiaries or on the prospects or the Subsidiary;
(g) conduct of the business of DSI or its Subsidiaries; Except as otherwise described in Section 3.13 of the Disclosure Schedule, all partnershipmaterial contracts and arrangements listed in Section 3.13 of the Disclosure Schedule are valid and binding agreements and are in full force and effect as to DSI and its Subsidiaries. Neither DSI nor its Subsidiaries is and, joint ventureto ▇▇▇▇' knowledge, shareholders' no other party is in material breach or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions default, and no event has occurred on the ability part of Interactive DSI or the Subsidiary to declare or pay dividendsits Subsidiaries or, to make distributions ▇▇▇▇' knowledge, on the part of any other party to any such contract or arrangement which with notice or lapse of time would constitute a material breach or default or permit termination under any such contract or arrangement, provided, however, that sales of products that result in respect shortages of products, late shipments of products, warranty claims on products sold or price changes on products and supplies shall not be deemed a breach of or to issue default under such contracts or purchasepermit termination thereunder for purposes of this Section 3.13. Except as set forth in Section 3.13 of the Disclosure Schedule, redeem none of such contracts or otherwise acquire any arrangements will be terminated or modified by the purchase of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels New Shares by Buyer, transfer of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available Transferred Shares to ▇▇▇▇▇ Subsidiary or the merger of ▇▇▇▇▇ Subsidiary into DSI and AdvercommClosing of this Agreement. All Neither DSI nor its Subsidiaries is a party to any verbal contract or arrangement which, if reduced to written form, would be required to be listed in Section 3.13 of the Scheduled Contracts Disclosure Schedule under the terms of this Section 3.13 other than with its representatives and vendors which are set out in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsDisclosure Schedule.
Appears in 1 contract
Contracts. Interactive Except as set forth on SCHEDULE 3.14 and the Subsidiary are not parties to, nor is Interactiveon SCHEDULE 3.16, the SubsidiaryCompany is not a party to or bound by any: (i) mortgage, indenture, note, or any of their assets or properties bound byinstallment obligation, or subject toother instrument for or relating to Indebtedness; (ii) contract of indemnity or guaranty of any obligation for borrowings or performance, or guaranty or warranty of products or services, excluding endorsements or guaranties of instruments made in the ordinary course of business in connection with the deposit of items for collection and express product and statutory warranties; (iii) agreement or arrangement for the sale or lease of any contractsamount of its assets in excess of $25,000 other than in the usual, agreementsregular and ordinary course of business; (iv) agreement or other arrangement for the purchase of any real estate, notes, instruments, franchises, leases, licenses, commitments, arrangements equipment or understandings, written or oral other capital assets in excess of $25,000; (collectively, "Contracts"v) of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts contracts pursuant to which Interactive it is or the Subsidiary, or another party thereto, is may be obligated to pay make payments, contingent or otherwise, on account of or arising out of prior acquisitions or sales of businesses, assets or stock of other companies; (vi) lease or other agreement for the use of personal property with rent in excess of fifty thousand dollars $25,000 per year; (vii) agreement imposing non-competition or exclusive dealing obligations on the Company; (viii) contract for the future purchase of materials, supplies, services, merchandise, parts or equipment in excess of $50,000);
25,000; (bix) distributor, dealer, value added reseller, original equipment manufacturer, franchise, manufacturer's representative, sales agency or other similar agreement; (x) license agreement or other agreement, other than licenses of Commercial Software, under which the Company is entitled to use, sublicense to others or otherwise exploit in any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use manner any Intellectual Property owned by a Person other than the Company; (as defined in Section 2.9 belowxi) license or information that is material to or necessary other agreement, other than standard object-code licenses entered into between the Company and its customers in the business ordinary course of Interactive or the SubsidiaryCompany's business, or pursuant to under which Interactive or the Subsidiary any other Person has granted to others the right to use, sublicense to others or otherwise exploit in any manner any Intellectual Property owned by or licensed exclusively to the Company; (xii) source code escrow agreement to which otherwise relates to, its the Company is a party; (xiii) agreement with any third party to develop any Intellectual Property;
; or (cxiv) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loanscontract, loan agreementscommitment, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts understanding that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are is material to the Condition of Interactive or the Subsidiary. True conduct and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All operations of the Scheduled Contracts are Company. Each Contract set forth on SCHEDULE 3.14 and on SCHEDULE 3.16 is valid, binding and enforceable against the Company and to the Knowledge of Seller the other parties thereto in accordance with its terms, and is in full force and effect and constitute legaleffect. Except as set forth on SCHEDULE 3.14, valid and binding obligations of Interactive and neither the Subsidiary andCompany nor, to the best knowledge Knowledge of Interactive Seller, any other party thereto is in material default under any Contract to which the Company is a party or by which it is bound or to which its assets are subject. Seller has delivered to Purchaser a copy of each Contract or other written evidence of the obligations, and all amendments thereto, listed on SCHEDULE 3.14, or, in the Subsidiarycase of any oral Contract referred to above, a written summary of the other parties thereto; material terms thereof, except to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsextent otherwise noted on Schedule 3.14.
Appears in 1 contract
Sources: Stock Purchase Agreement (Strategic Distribution Inc)
Contracts. Interactive and Section 3.18 of the Subsidiary Disclosure Schedule lists the following Contractual Obligations (excluding any Contractual Obligations that are not parties to, nor is Interactive, terminable by the Subsidiary, Company or any of their assets its Subsidiaries on not more than 30 days notice without penalty) to which the Company or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretoits Subsidiaries is a party:
(a) any Contracts pursuant Contractual Obligation (or group of Contractual Obligations) for the lease of personal property to which Interactive or the Subsidiary, or another party thereto, is obligated to pay from any Person providing for lease payments in excess of fifty thousand dollars ($50,000)25,000 annually;
(b) any Contracts pursuant to which Interactive Contractual Obligation (or group of related Contractual Obligations) for the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) purchase or information that is material to or necessary in the business sale of Interactive or the Subsidiaryraw materials, commodities, supplies, products, or pursuant to which Interactive or the Subsidiary has granted to others the right to useother personal property, or for the furnishing or receipt of services, the performance of which otherwise relates to, its Intellectual Propertywill extend over a period of more than one year or involves consideration in excess of $25,000;
(c) any Contracts (other than advances Contractual Obligation creating or making the Company or any of expenses to employees its Subsidiaries a party in the ordinary course of business) involving loansa partnership, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships limited liability company or guaranteesjoint venture;
(d) any Contracts between InteractiveContractual Obligation (or group of related Contractual Obligations) under which it has created, incurred, assumed, or guaranteed any Indebtedness in excess of $10,000 or under which it has imposed a Lien on the one hand, and any of its officersassets, directorstangible or intangible, employees or any Persons that beneficially own except for the endorsement of checks for deposit in excess the Ordinary Course of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise)Business;
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans Contractual Obligation concerning confidentiality or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiarynoncompetition;
(f) any Contracts with material Contractual Obligation relating to the Company or any labor union affecting employees of Interactive its Subsidiaries, their assets, liabilities or business between or among the SubsidiaryCompany and its Affiliates (other than between the Company and any of the Company's Subsidiaries);
(g) all partnershipany profit sharing, joint venturestock option, shareholders' stock purchase, stock appreciation, deferred compensation, severance, or similar Contracts with any Personother plan or arrangement for the benefit of its current or former directors, officers, consultants, agents or employees;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditioncollective bargaining agreement;
(i) any Contracts which restrict Interactive Contractual Obligation providing for the employment or consultancy with any individual on a full-time, part-time, consulting or other basis in excess of $10,000 or providing severance or retirement benefits in excess of $25,000 in the Subsidiary from freely engaging in business or competing anywhere; andaggregate;
(j) any Contracts Contractual Obligation under which otherwise are material it has advanced or loaned any amount to any of its stockholders, Affiliates, directors, officers, consultants, agents or employees other than in the Condition Ordinary Course of Interactive Business;
(k) any other Contractual Obligation (or group of related Contractual Obligations) the Subsidiaryperformance of which involves consideration in excess of $10,000; or
(l) any Contractual Obligation pursuant to which a party thereto is entitled to a commission based on sales to or revenues or profits derived from one or more customers, or success fees, finders fees or other compensation related to sales. True and correct copies of all Scheduled Contracts have been The Company has made available to ▇▇▇▇▇ the Buyer a correct and Advercommcomplete copy of each written Contractual Obligation listed in ss. All 3.18 of the Scheduled Contracts are Disclosure Schedule and a written summary setting forth the terms and conditions of each oral Contractual Obligation referred to in ss. 3.18 of the Disclosure Schedule. With respect to each such Contractual Obligation: (i) to the Knowledge of the Company and the Sellers, (a) the Contractual Obligation is legal, valid, binding and enforceable against the Company, except to the extent that enforceability may be limited by bankruptcy, insolvency and other similar Laws affecting the enforcement of creditors' rights generally, and, to the Knowledge of the Sellers and the Company, in full force and effect, and (b) the Contractual Obligation will continue to be legal, valid, binding, enforceable, and in full force and effect and constitute legal, valid and binding obligations on identical terms immediately following the consummation of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement hereby; (ii) none of the Company, any of its Subsidiaries, any Seller or require (to the Knowledge of the Company and the Sellers) any third other party consentsthereto is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification, or acceleration, under the Contractual Obligation; and (iii) none of the Company, any of its Subsidiaries, any Sellers or (to the Knowledge of the Company and the Sellers) any other party thereto has repudiated any provision of the Contractual Obligation.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization and Merger (Be Aerospace Inc)
Contracts. Interactive and (a) Section 5.11(a) of the Subsidiary are Disclosure Schedule lists the following Contracts to which Seller is a party or is bound by (each such Contract, whether or not parties toset forth in such section of the Disclosure Schedule, nor is Interactive, the Subsidiarya “Material Contract”):
(i) employment or consulting Contract, or any of their assets employee collective bargaining agreement or properties bound by, other Contract with any labor union or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)Seller employee;
(bii) Contract not to compete or otherwise restricting the development, manufacture, marketing, distribution or sale of any products or services by Seller;
(iii) Contract containing any “non-solicitation” or “no-hire” provision that restricts Seller in any manner;
(iv) Contract containing any provision that purports to apply to or restrict Seller from engaging in any line of business anywhere in the world;
(v) Contract with or involving the Seller’s stockholders or any Affiliate of Seller’s stockholders other than Seller to the extent that any such Contract will constitute an Assumed Obligation;
(vi) lease, sublease or similar Contract with any Person under which Seller is a lessor or sublessor of, or makes available for use to any Person, (A) any Leased Property, or (B) any portion of any premises otherwise occupied by Seller;
(vii) lease or similar Contract with any Person under which (A) Seller is lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any Person (other than any Contracts pursuant that individually do not involve the payment by or to which Interactive Seller of more than $50,000 in any twelve-month period and in the aggregate do not involve the payment by or to Seller of more than $100,000 in any twelve-month period), or (B) Seller is a lessor or sublessor of, or makes available for use by any Person, any tangible personal property owned or leased by Seller;
(viii) Contract for the purchase or sale of products or the Subsidiary acquired the right furnishing or receipt of services: (A) calling for performance over a period of more than one (1) year; (B) requiring or otherwise involving payment by or to use Seller of more than $50,000 in any Intellectual Property twelve-month period (as defined in or, together with all other Contracts of such type not otherwise required to be listed under this Section 2.9 below) or information that is material to or necessary 5.11(a)(viii), more than $100,000 in the aggregate in any twelve-month period); (C) in which Seller has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to any products or territory; or (D) in which Seller has agreed to purchase or sell a minimum quantity of goods or services or has agreed to purchase or sell goods or services exclusively from a certain party;
(ix) Contract for the disposition of any assets or business of Interactive Seller other than sales of inventory in the Ordinary Course of Business, or any agreement for the Subsidiaryacquisition, directly or indirectly, of the assets or business of any other Person other than the purchase of inventory in the Ordinary Course of Business;
(x) Contract for any joint venture or partnership;
(xi) Contract granting a third party any license to any Seller Intellectual Property, or pursuant to which Interactive Seller has been granted by a third party any license to any Intellectual Property other than “off the shelf” or other standard widely commercially available software products, or any other license, option or other Contract relating in whole or in part to Seller Intellectual Property or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual PropertyProperty of any other Person;
(cxii) any Contracts Contract (other than advances of expenses to employees trade debt incurred in the ordinary course Ordinary Course of businessBusiness) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) under which Seller has borrowed any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactivemoney from, or issued any Affiliate note, bond, debenture or relativeother evidence of Indebtedness to, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(hxiii) all Contracts that limit Contract (including so called “take or contain restrictions on pay” or “keep well” agreements) under which (A) any Person has directly or indirectly guaranteed Indebtedness, liabilities or obligations of Seller, or (B) Seller has directly or indirectly guaranteed Indebtedness, liabilities or obligations of any Person (in each case other than endorsements for the ability purpose of Interactive or collection in the Subsidiary to declare or pay dividends, to make distributions in respect Ordinary Course of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionBusiness);
(ixiv) Contract (other than trade debt incurred in the Ordinary Course of Business) under which Seller has, directly or indirectly, made any Contracts advance, loan, extension of credit or capital contribution to, or other investment in, any Person;
(xv) mortgage or other Lien upon any Leased Property, other than Permitted Liens and Liens which restrict Interactive would not materially impair the current uses or the Subsidiary from freely engaging occupancy by Seller of such Leased Property;
(xvi) Contract providing for indemnification of any Person by Seller other than any agreement of indemnification entered into in connection with the sale or license of software products in the Ordinary Course of Business;
(xvii) Contract providing that Seller or any current Seller employee maintain the confidentiality of any information, or providing for any Person to maintain the confidentiality of any information material to Seller or the Business;
(xviii) Contract involving a research or development collaboration or similar arrangement;
(xix) Contract granting any third party a security interest in any of the Seller’s assets;
(xx) Contract giving any party the right to renegotiate or require a reduction in price or refund of payments previously made in connection with the business or competing anywhereof the Seller; and
(jxxi) Contract not entered into in the Ordinary Course of Business and requiring a payment of greater than $50,000 in any Contracts which twelve-month period and not otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All disclosed under items (i) through (xx) above.
(b) Except as set forth in Section 5.11(b) of the Scheduled Contracts are Disclosure Schedule, each Contract is in full force and effect effect, and constitute legal, is valid and binding obligations of Interactive and the Subsidiary upon Seller and, to Seller’s Knowledge, any other party thereto.. True and complete copies of each Material Contract (and a written summary of the best knowledge terms of Interactive and any oral Material Contracts) have been delivered or made available to Purchaser. Except as set forth in Section 5.11(b) of the SubsidiaryDisclosure Schedule, the other parties thereto; there is no material default, material violation or material breach under any Contract by Seller or, to the best Knowledge of Interactive's Seller, by any other party thereto, and no event has occurred or condition exists that with the Subsidiary's knowledgelapse of time or the giving of notice or both would constitute a material default, material violation or material breach thereunder by Seller or, to the Knowledge of Seller, any other party thereto, except to the extent such default, violation or breach would not individually or in the aggregate cause a Material Adverse Change. Except as set forth in Section 5.11(b) of the Disclosure Schedule, no circumstances exist notice, waiver, consent or approval is required (or the lack of which would give rise to an Action (as defined in Section 2.13a right of termination, cancellation or acceleration of, or entitle any party to accelerate, whether after the giving of notice or lapse of time or both, any obligation under the Contracts) against under or by Interactive or the Subsidiary relating to any Contract in connection with any Scheduled Contract the execution, delivery and performance of this Agreement or any default thereunder; and the validity, effectiveness and continuation consummation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement hereby the failure to give or require any third party consentsobtain which would cause a Material Adverse Change.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts"a) Section 3.12(a) of the Disclosure Schedule sets forth a true, correct and complete list as of the date hereof of the following typeswritten contracts and the material terms and conditions of the following oral contracts which relate, except for those in each case, primarily to, or were primarily entered into in connection with, the Business, to which any Seller is a party, and which are Assumed Contracts (the "Scheduled “Material Contracts"”) listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances the insurance policies set forth on Section 3.15 of expenses to employees the Disclosure Schedule and the Employee Plans):
(i) all contracts (excluding work orders, purchase orders and credit applications submitted in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds that individually involve annual payments to or from a Seller in excess of trust, security agreements, suretyships or guarantees$25,000;
(dii) all contracts for the employment of any Contracts between InteractiveBusiness Employee or with respect to the equity compensation of any Business Employee, in each case, that is not terminable at-will;
(iii) all Collective Agreements;
(iv) all contracts imposing a Lien (other than a Permitted Lien) on any Transferred Asset;
(A) all leases relating to the one handLeased Real Property and all other leases or licenses involving any properties or assets (whether real, personal or mixed, tangible or intangible) involving an annual commitment or payment of more than $125,000 individually by a Seller, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of material oral leases to which any of the foregoing, on Sellers is a party (if any) relating to the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned personLeased Real Property, and "control" means the possession, directly (B) all leases relating to rolling stock or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwisematerial handling equipment (including forklifts);
(evi) all contracts that limit or restrict the Business from engaging in any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans business or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiaryactivity in any jurisdiction;
(fvii) all contracts that contain exclusivity obligations or restrictions binding on the Business such that the Business is prohibited from engaging in any business or activity whether alone or with third parties, whether before or after the applicable Closing, other than (A) any Contracts contracts or agreements with respect to Incubation Beverages (as defined in the Comprehensive Beverage Agreement) with any labor union affecting employees Seller or any of Interactive the Sellers’ Affiliates as long as such exclusivity obligations or restrictions are limited to the Subsidiaryapplicable Facility or (B) any contracts or agreements with respect to third-party licensed beverage brands that will terminate prior to the applicable Closing without survival of any such exclusivity obligation or restriction;
(gviii) all partnershipcontracts for capital expenditures or the acquisition or construction of fixed assets, joint venturein each case, shareholders' in excess of $25,000, whether individually or similar Contracts with any Personin the aggregate;
(hix) all Contracts contracts granting to any Person an option or a right of first refusal, right of first-offer or similar preferential right to purchase or acquire any Transferred Asset;
(x) all contracts that limit provide for an increased payment or contain restrictions on benefit, or accelerated vesting, upon the ability execution of Interactive this Agreement or the Subsidiary applicable Closing or in connection with the transactions contemplated hereby;
(xi) all joint venture or partnership contracts, cooperative agreements and all other contracts providing for the sharing of any profits;
(xii) all contracts by which a Seller licenses the Transferred Licensed Intellectual Property, other than contracts for commercially available, off-the-shelf computer software with a replacement cost or aggregate annual license and maintenance fee of less than $20,000;
(xiii) all contracts that contain any “most favored nation” (or equivalent) provision in favor of any Customer;
(xiv) all contracts not made in the ordinary course of business that individually involve annual payments to declare or pay dividendsfrom a Seller in excess of $25,000;
(xv) all contracts that relate to the acquisition or disposition of any business or any material amount of stock, assets or real property;
(xvi) all contracts granting a Seller rights to make distributions in respect manufacture or produce any beverage or beverage product at the Facilities, other than contracts regarding manufacturing or production of the beverages and beverage products described on Section 7.01(a)(iv) of the Disclosure Schedule or to issue Section 7.02(a)(ii) of the Disclosure Schedule or purchase, redeem any contract with any Seller or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionAffiliates;
(ixvii) to the Knowledge of the Sellers, all written contracts with any Contracts which restrict Interactive Seller or any Affiliate of a Seller granting a Seller rights to manufacture or produce any beverage or beverage product at the Facilities, but only to the extent that such contracts will not be superseded by the Comprehensive Beverage Agreement or the Subsidiary from freely engaging in business or competing anywhereInitial RMA; and
(jxviii) any Contracts which otherwise all other contracts and leases involving annual payments to or from a Seller in excess of $25,000 that are material to the Condition Transferred Assets or to the operation of Interactive or the Subsidiary. True Business.
(b) Section 3.12(b) of the Disclosure Schedule sets forth a true, correct and correct copies complete (i) list as of the date hereof of all Scheduled Shared Contracts have been made and (ii) list or general description as of the date hereof of any other goods or services that the Business receives or provides pursuant to any national or worldwide contract or agreement that relates to both the Business and the businesses retained by the Sellers and/or their Affiliates that will not be available to ▇▇▇▇▇ the Buyer after the applicable Closing on substantially the same terms as available to the Business prior to the applicable Closing.
(c) Each Material Contract, Shared Contract and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute Specified Non-Transferring Contract is a legal, valid and binding obligations obligation of Interactive and the Subsidiary a Seller and, to the best knowledge Knowledge of Interactive the Sellers, of each other party to such Material Contract, Shared Contract or Specified Non-Transferring Contract, as applicable, and each is enforceable against a Seller and, to the Knowledge of the Sellers, each such other party in accordance with its terms (except in each case as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, including the effect of statutory and other laws regarding fraudulent conveyances and preferential transfers, and subject to the limitations imposed by general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity). None of the Sellers nor, to the Knowledge of the Sellers, any other party to a Material Contract, Shared Contract or Specified Non-Transferring Contract is in material default or material breach or has failed, or as of the applicable Closing will have failed, as applicable, to perform any material obligation under a Material Contract, Shared Contract or Specified Non-Transferring Contract, as applicable, and, to the Knowledge of the Sellers, there does not exist any event, condition or omission that would constitute such a material breach or material default (whether by lapse of time or notice or both). None of the Sellers has received any written notice of a proposed termination, cancellation or non-renewal with respect to any Material Contract, Shared Contract or Specified Non-Transferring Contract. It is understood that certain of the Material Contracts, Shared Contracts or Specified Non-Transferring Contracts may expire by their terms between the date of this Agreement and the Subsidiaryapplicable Closing Date, and no such expiration will be considered a breach of any of the representations set forth in this Section 3.12(c). Each Material Contract that requires the consent of or notice to the other parties thereto; party thereto to the best avoid any breach, default or violation of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary such Material Contract in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated hereby has been identified on Section 3.12(a) of the Disclosure Schedule with an asterisk.
(d) As of the applicable Closing, each Pre-Closing Material Contract will be a legal, valid and binding obligation of a Seller and, to the Knowledge of the Sellers, of each other party to such Pre-Closing Material Contract, and, as of the applicable Closing, each will be enforceable against a Seller and, to the Knowledge of the Sellers, each such other party in accordance with its terms (except in each case as may be limited by this Agreement applicable bankruptcy, insolvency, reorganization, moratorium or require other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, including the effect of statutory and other laws regarding fraudulent conveyances and preferential transfers, and subject to the limitations imposed by general equitable principles regardless of whether such enforceability is considered in a proceeding at law or in equity). As of the applicable Closing, none of the Sellers nor, to the Knowledge of the Sellers, any third other party consentsto a Pre-Closing Material Contract will be in material default or material breach or will have failed to perform any material obligation under a Pre-Closing Material Contract and, to the Knowledge of the Sellers, as of the applicable Closing, there will not exist any event, condition or omission that would constitute such a material breach or material default (whether by lapse of time or notice or both). As of the applicable Closing, none of the Sellers will have received any written notice of a proposed termination, cancellation or non-renewal with respect to any Pre-Closing Material Contract.
(e) The Sellers have provided the Buyer with true, correct and complete copies of all Material Contracts and all portions of any Shared Contracts and Specified Non-Transferring Contracts that relate to the Business (together with such other portions thereof as are necessary to comprehend the terms thereof that apply to the Business) and all written modifications, amendments and supplements thereto and written waivers thereof, in each case, as of the date hereof. To the extent that, between the date hereof and the applicable Closing, the Sellers locate any contracts which would have been required to be disclosed in response to Section 3.12(a)(xvii) if the Sellers had Knowledge of such contracts on the date hereof, then the Sellers will promptly provide true, correct and complete copies of any such contracts to the Buyer.
Appears in 1 contract
Sources: Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Contracts. Interactive (a) Section 3.07(a) of the Seller Disclosure Letter sets forth a true and complete list, as of the Subsidiary are not parties todate of this Agreement, nor is Interactive, the Subsidiary, of each Contract (other than any Contracts relating solely to Excluded Assets) to or by which Lucky Parent or any of their assets its subsidiaries is a party or properties bound by, or subject to, and to which any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following typesBusiness or the Acquired Assets are subject and will continue to be subject after the Closing Date, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretothat is or includes:
(ai) a covenant not to compete or not to engage in any Contracts pursuant to which Interactive activity or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiarybusiness, or pursuant to which Interactive any benefit is required to be given or the Subsidiary has granted to others the right to use, lost as a result of so competing or which otherwise relates to, its Intellectual Propertyengaging;
(cii) a lease, sublease or similar Contract with any Contracts person under which (A) Lucky Parent or any of its subsidiaries is lessee of, or holds or uses or any other tangible personal property owned by any person that is material to the conduct of the Business or (B) Lucky Parent or any of its subsidiaries is a lessor or sublessor of, or makes available for use by any person, any tangible personal property owned or leased by Lucky Parent or any of its subsidiaries that is material to the conduct of the Business;
(iii) a Contract granting a Lien upon any Acquired Asset;
(iv) a Contract providing for indemnification of any person with respect to liabilities relating to any current or former business of Lucky Parent or any of its subsidiaries or any predecessor person;
(v) a Contract (including consulting and services agreements) which provides for “exclusivity” or any similar requirement in favor of any person other than advances Lucky Parent or any of expenses its subsidiaries or that requires or obligates Lucky Parent or any of its subsidiaries to employees purchase specified minimum amounts of any product;
(vi) a Contract not made in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guaranteesthe Business;
(dvii) any Contracts between Interactivea nondisclosure agreement, on confidentiality agreement or similar Contract entered into outside of the one hand, and ordinary course of the Business;
(viii) a Contract (A) involving future payment of more than $100,000 by or to Lucky Parent or any of its officers, directors, employees subsidiaries (unless terminable without payment or penalty upon no more than 30 days’ notice) or (B) providing for future performance by the Business or Lucky Parent or any Persons that beneficially own of its subsidiaries in consideration of amounts previously paid to the Business or Lucky Parent or any of its subsidiaries, or which has resulted in deferred revenue under GAAP of more than $100,000;
(ix) a Contract for the sale of any Acquired Asset in excess of 10.0% $50,000 or the grant of any preferential rights to purchase any Acquired Asset in excess of $50,000 or requiring the consent of any party to the transfer thereof;
(x) a Contract with any Governmental Entity;
(xi) a Contract relating to any completed, pending or proposed (A) joint venture, partnership or similar arrangement, (B) acquisition or divestiture of any person, business or division or (C) merger or reorganization;
(xii) a Contract granting the other party to such Contract or a third party “most favored nation” or similar status;
(xiii) a Contract that prohibits the hiring or solicitation for employment of employees of another person;
(xiv) a Contract that would purport to bind any affiliate of Jupiter Parent (other than the Company and its subsidiaries) after it is assigned to the Company;
(xv) a Contract entered into in connection with the settlement or other resolution of any Proceeding pursuant to which Lucky Parent or any of its subsidiaries has any ongoing performance obligations;
(xvi) a Contract which restricts the conduct of the outstanding equity interest Business (each a "Principal Owner"including the ability to research, develop, commercialize, distribute, sell, supply, market or manufacture any product (including products under development) of Interactivefor any indication in any product market, therapeutic area or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwisegeographic area);
(exvii) a Contract that would require the Company to perform or conduct research, clinical trials or development for the benefit of any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or third party after it is assigned to the SubsidiaryCompany;
(fxviii) a Contract which relates to research, clinical trial, development, commercialization, distribution, sale, supply, license, marketing, co-promotion or manufacturing by third parties of products (including products under development) owned or licensed by or on behalf of Lucky Parent or any Contracts with any labor union affecting employees of Interactive its subsidiaries, that are used, held for use or intended to be used in, or arise from, the Subsidiaryoperation or conduct of the Business, in each case involving expenditures greater than $100,000;
(gxix) all partnershipa Contract that would require the Company to grant an option or a right of first refusal, joint venture, shareholders' right of first negotiation or similar Contracts with right of first offer in favor of any Personthird party after it is assigned to the Company;
(hxx) all Contracts that limit a Contract containing any provisions (A) dealing with a “change of control” or contain similar event with respect to a Seller or the Business, (B) prohibiting or imposing any restrictions on the ability assignment of Interactive all or any portion of such Contract by a Seller or any other person or (C) having the Subsidiary to declare effect of providing that the consummation of the Acquisition or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or the Specified Collaboration Documents or the execution, delivery or effectiveness of this Agreement or the Specified Collaboration Documents will require the consent of the other party or parties thereto or will conflict with, result in a violation of, or constitute a default under (with or without notice or lapse of time, or both), such Contract or give rise under such Contract to any third right of termination, right of first refusal, amendment, revocation, cancellation or acceleration, or loss of material benefit under, or the creation of any Lien in or upon or transfer of any of the properties or assets of a Seller or the Company or any of their respective affiliates, or to any increased, guaranteed, accelerated or additional rights or entitlements of any person or any other material changes in the terms thereof; or
(xxi) a Contract other than as set forth above to which Lucky Parent or any of its subsidiaries is a party consentsor by which it or any of its assets or businesses is bound or subject that is material to the Business or the use or operation of the Acquired Assets.
Appears in 1 contract
Contracts. Interactive and (a) Except as set forth on the Subsidiary are not parties Material Contracts Schedule or otherwise in accordance with this Agreement (including as set forth on the Interim Covenants Schedule), no member of the Company Group is a party to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following typesContracts (in each case, excluding any Employee Benefit Plan):
(i) collective bargaining agreement or other material Contract with any labor union, works council, trade union or other employee representative group or body (“Labor Union”) applicable to Company Employees;
(ii) Contract relating to Indebtedness for Borrowed Money or letter of credit arrangements in excess of $1,000,000 or provides for any hedging or swap obligations;
(iii) any Inbound License Agreement or Outbound License Agreement;
(iv) power of attorney, except for those (granted in the "Scheduled Contracts") listed in Part 2.8 Ordinary Course of Schedule II hereto:Business;
(av) other than this Agreement, including in respect of the Security Services Separation, Contract for the sale, transfer or acquisition of any Contracts material assets, Equity Interest or business of any member of the Company Group (other than those providing for sales, transfers or acquisitions of assets in the Ordinary Course of Business) or for the grant to any Person of any preferential rights to purchase any of the assets, Equity Interests or business of any member of the Company Group, in each case, under which there are material outstanding obligations of the applicable member of the Company Group;
(vi) Contract which contains a provision (A) expressly prohibiting or materially restricting any member of the Company Group from competing in any jurisdiction or (B) with a Material Customer, Material Supplier, or that is otherwise required to be disclosed pursuant to another clause of this Section 3.9(a) and that grants any Person an exclusive right, “most favored nation” status (whether with respect to pricing or otherwise), right of first refusal, right of first negotiation or similar right;
(vii) Contract involving the settlement of any Proceeding or threatened Proceeding (A) pursuant to which Interactive or any member of the Subsidiary, or another party thereto, is obligated to pay Company Group will have any outstanding monetary obligation after the date of this Agreement in excess of fifty thousand dollars $5,000,000 or (B) which materially restricts or imposes material obligations upon the any of the Company Group;
(viii) Contract with respect to the Business that is not otherwise required to be disclosed pursuant to another clause of this Section 3.9(a) that provides for payment or receipt by a member of the Company Group of more than $50,0005,000,000 during the last twelve months; or
(ix) joint venture, partnership or similar agreements or arrangements of and with respect to the Business (other than reseller and revenue sharing arrangements entered into in the Ordinary Course of Business);.
(b) Except as specifically disclosed on the Material Contracts Exceptions Schedule, each Contract listed (or that is required to be listed) on the Material Contracts Schedule (each, a “Material Contract”) is legal, valid, binding, enforceable against the applicable member of the Company Group that is party thereto and, to the Knowledge of the Seller, against each other party thereto, except as such may be limited by Enforcement Exceptions. No member of the Company Group is in material default under any Contracts pursuant Material Contract to which Interactive or it is a party, and, to the Subsidiary acquired Knowledge of the right to use Seller, no third party is in material default under any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant Material Contract to which Interactive any member of the Company Group is a party. In the last twelve (12) months, no member of the Company Group has received written notice of termination or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts non-renewal of (other than advances of expenses to employees in the ordinary course Ordinary Course of businessBusiness) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate claim of a relativematerial breach or material default under any Material Contract. True, correct and complete copies of any of the foregoingeach Material Contract, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts together with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnershipamendments, joint venturemodifications and material waivers thereto, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsBuyer.
Appears in 1 contract
Contracts. Interactive (a) Except as set forth in the Disclosure Schedule, neither SRT nor Seller (with respect to the operation or conduct of the Business) is a party to, and the Subsidiary are Acquired Assets do not include, any:
(i) written arrangement (or group of related written arrangements with the same person or such person's Affiliates) for the lease of personal property from or to third parties to, nor providing for lease payments the remaining unpaid balance of which is Interactive, in excess of $50,000;
(ii) written arrangement (or group of related written arrangements with the Subsidiarysame person or such person's Affiliates) for the purchase or sale of products or services under which the undelivered balance of such products and services is, or with respect to which prepayment has been made to Seller, in excess of $100,000, other than (A) purchase orders relating to the supply of goods and services to the Business in the Ordinary Course of Business and (B) agreements relating to the purchase by Seller or SRT of goods and services to the Business in the Ordinary Course of Business which are cancelable by Seller or SRT, as the case may be, without penalty, upon six months or shorter notice;
(iii) written arrangement establishing a partnership or joint venture;
(iv) written arrangement (or group of related written arrangements with the same person or such person's Affiliates) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) the outstanding amount of which is more than $50,000 or under which it has imposed (or may impose) a Security Interest on any Acquired Asset, asset of their assets SRT or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following typesSRT Stock, except for those (the "Scheduled Contracts") listed any Security Interests relating to capitalized lease financing or indebtedness for borrowed money in Part 2.8 an aggregate amount of Schedule II hereto:less than $50,000;
(av) written material arrangement that prohibits the Business from freely engaging in business anywhere in the world, other than agreements with sales representatives and distributors terminable on not more than 90 days notice without payment of any Contracts pursuant penalty;
(vi) written arrangement under which the consequences of a default or termination would reasonably be expected to have a Business Material Adverse Effect;
(vii) written agreement involving SRT's or (with respect to the Business) Seller's executive officers or directors (other than stay pay bonus arrangements which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000constitute Retained Liabilities);
(bviii) written agreement for the employment of any Contracts pursuant individual on a full-time or part-time basis providing base annual compensation in excess of $100,000 during fiscal 2000;
(ix) written severance, "stay pay" or termination agreement with any officer or other employee of the Business (other than those that constitute Retained Liabilities);
(x) written agreement for the sale of any assets or properties of SRT or (with respect to the Business) Seller, other than goods and services in the Ordinary Course of Business, which involves a payment to be made to SRT, Seller or an Affiliate thereof in excess of $100,000;
(xi) written agreement for the acquisition by SRT or (with respect to the Business) Seller of any operating business or the capital stock of any other person;
(xii) written agreement relating to any obligation, covenant or indemnity of SRT or (with respect to the Business) Seller with respect to which Interactive SRT or Seller is a guarantor or surety or has provided any letter of comfort, letter of credit, surety bond or other similar assurance to any third party;
(xiii) other than to customers or other end users of products or services of the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary Business in the business Ordinary Course of Interactive Business or in connection with advertising, product promotion or other non-exclusive, short-term uses, written agreement involving the Subsidiarylicensing of, or pursuant to which Interactive assignment or the Subsidiary has granted to others the right to usetransfer of, or which otherwise relates to, its any rights in Designated Intellectual Property;
(cxiv) any Contracts other written agreement (other than advances or group of expenses to employees in related written agreements with the ordinary course of businesssame person or such person's Affiliates) involving loans, loan agreements, debt securities, mortgages, deeds payments to be made or received after the date of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own this Agreement in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere$100,000; and
(jxv) written material agreement not entered into in the Ordinary Course of Business that is not the subject matter of any clauses (i) through (xiv) above; PROVIDED, HOWEVER, that (x) no agreement referred to in clauses (i) through (xv) above need be disclosed unless Seller or SRT currently has, or may in the future have, any rights or obligations thereunder and (y) Leases are not required to be disclosed in response to any provision of this Section 2.13 and shall not constitute Designated Contracts (as defined below). There are no enforceable oral agreements to which otherwise are material SRT or (with respect to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been Business) Seller is a party which, if in writing, would be required to be disclosed pursuant to this Section 2.13(a).
(b) Seller has made available to ▇▇▇▇▇ Buyer a correct and Advercomm. All complete copy of each agreement (as amended to date) listed in Section 2.13 of the Scheduled Contracts are in full force and effect and constitute Disclosure Schedule (the "DESIGNATED CONTRACTS"). Each Designated Contract is a legal, valid valid, binding and binding obligations enforceable obligation of Interactive and Seller or SRT, as the Subsidiary case may be, and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the SubsidiarySeller's knowledge, of each other party thereto (except as the foregoing with respect to such other party may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights of creditors generally and by equitable principles, including those limiting the availability of specific performance, injunctive relief, and other equitable remedies and those providing for equitable defenses), and there exists no circumstances exist defaults of Seller or SRT, as the case may be, or, to Seller's knowledge, any other party thereto, except for any such failures to be legal, valid, binding and enforceable or defaults that would not reasonably be expected to have a Business Material Adverse Effect. As of the date of this Agreement, neither Seller nor SRT has received written notice that any party to a Designated Contract intends to terminate the Designated Contract to which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsit is a party.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") 4.13.1. Section 4.13.1 of the Disclosure Schedule lists the following typesContracts, except for those as of the date hereof, that are in effect and to which the Company is a party (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:each such Contract, a “Material Contract”):
(a) any Contracts pursuant to which Interactive employment or the Subsidiaryindividual independent contractor Contracts, or another party theretoany employee collective bargaining agreements or other Contracts, is obligated to pay in excess of fifty thousand dollars each case, with any labor union or other employee representative body ($50,000a “Union”);
(b) Contracts that limit the freedom of the Company to compete in any line of business or geographic or therapeutic area or otherwise restricting the research, development, manufacture, marketing, distribution, sale, supply, license or marketing of the products and services that the Company or any Affiliate currently plans to develop, or to make use of any of their Intellectual Property rights or which would so limit the freedom of the Company after the Closing Date;
(c) Contracts pursuant containing any “non-solicitation” or “no-hire” provision that restricts the Company (other than nondisclosure agreements entered into in the Ordinary Course of Business);
(d) leases, subleases or similar Contracts that the Company is a party to which Interactive that is related to (A) any Leased Property or (B) any portion of any premises otherwise occupied by the Company, in each case involving expenditures in excess of [ * ] per year;
(e) Personal Property Leases providing for lease payments in excess of [ * ] per year;
(f) Contracts for the purchase or sale of products or the Subsidiary acquired furnishing or receipt of services (A) calling for performance over a period of more than one year, (B) requiring or otherwise involving payment by or to the right Company of more than an aggregate of [ * ], (C) in which the Company has granted manufacturing rights, “most favored nation” pricing provisions or marketing or distribution rights relating to use any Intellectual Property products or territory or (as defined D) in Section 2.9 belowwhich the Company has agreed to purchase a minimum quantity of goods or services or has agreed to purchase goods or services exclusively from a certain party;
(g) Contracts (or information that is letter of intent) involving the disposition or acquisition of any product line, business or significant portion of the assets, properties or business of the Company, or any merger, consolidation or similar business combination transaction, whether or not enforceable;
(h) Contracts relating to material to capital expenditures or necessary other purchases of material, supplies, equipment or other assets or properties (other than purchase orders for inventory or supplies in the business Ordinary Course of Interactive Business);
(i) Contracts for any joint venture, partnership, joint product development, strategic alliance or the Subsidiaryco-marketing arrangement;
(j) Contracts granting a third party any license or sublicense to any Company Intellectual Property, or pursuant to which Interactive the Company has been granted by a third party any license or sublicense to any Intellectual Property, or any other license, sublicense, option or other Contract relating in whole or in part to the Company Intellectual Property or the Subsidiary Intellectual Property of any other Person, except, in each case, for standard end-user, internal use software licenses for the use of commercial “shrink-wrapped” software, whether actually “shrink-wrapped”, downloaded or otherwise made available to the Company;
(k) any Contracts to which the Company is a party relating to research services or Clinical Trials in respect of products (including Products) of the Company;
(l) any right of first refusal, right of first negotiation or right of first offer in favor of a party other than the Company;
(m) any agency, dealer, sales representative, distribution, marketing or other similar agreements;
(n) Contracts (other than trade debt incurred in the Ordinary Course of Business) under which the Company has granted to others the right to useborrowed (or may borrow) any money from, or which otherwise relates issued (or may issue) any note, bond, debenture or other evidence of Indebtedness to, its any Person;
(o) Contracts (including so‑called take‑or‑pay or keepwell agreements) under which (A) any Person (including the Company) has directly or indirectly guaranteed or assumed Indebtedness, Liabilities or obligations of the Company or (B) the Company has directly or indirectly guaranteed or assumed Indebtedness, Liabilities or obligations of any Person (in each case other than endorsements for the purpose of collection in the Ordinary Course of Business);
(p) Contracts under which the Company has made or is obligated make, directly or indirectly, any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company) or any Contracts relating to the making of any such advance, loan, extension of credit, capital contribution or other investment;
(q) Contracts providing for indemnification of any Person by the Company outside of the Ordinary Course of Business;
(r) any Contracts with any current or former holder of Company Capital Stock;
(s) Contracts involving any resolution or settlement of any Action or other dispute;
(t) any Contracts containing any covenant not to ▇▇▇, concurrent use agreement, settlement agreement, pre-rights declarations, co-existence agreement or other consent with respect to the Company Intellectual Property;
(cu) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons providing that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary Company Personnel maintain the confidentiality of any information, or providing for any Person to maintain specified financial ratios or levels the confidentiality of net worth or other indicia any information material to the Company, in each case outside of financial conditionthe Ordinary Course of Business;
(iv) any Contracts under which restrict Interactive the consequences of a default or the Subsidiary from freely engaging termination could reasonably be expected to result in business or competing anywherea Material Adverse Change; and
(jw) any other Contracts which otherwise are material to the Condition involving future payments in excess of Interactive or the Subsidiary[ * ] in a [ * ] period.
4.13.2. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are Each Material Contract is in full force and effect effect, and constitute legal, is valid and binding obligations of Interactive and enforceable in accordance with its terms against the Subsidiary Company and, to the best knowledge of Interactive and the SubsidiaryCompany, the other parties thereto; , subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Applicable Laws affecting creditors’ rights generally and general principles of equity. A true, correct and complete copy of each written Material Contract and a true, correct and substantially complete summary of each oral Material Contract have been provided to Buyer. There is no violation, breach (including anticipatory breach) or default under any Material Contract by the Company or, to the best knowledge of Interactive's the Company, by any other party thereto, and no event has occurred or condition exists that with the lapse of time or the giving of notice or both would constitute a default thereunder by the Company or, to the knowledge of the Company, any other party thereto, and the Subsidiary's knowledgeCompany has not received or given notice of any default or claimed or purported or alleged default or state of facts which, with notice or lapse of time or both, would constitute a default on the part of any party in the performance or payment of any Material Contract. Except as set forth in Section 4.13.2 of the Disclosure Schedule, no circumstances exist notice, waiver, consent or approval is required (or the lack of which would give rise to an Action (as defined in Section 2.13a right of termination, cancellation or acceleration of, or entitle any party to accelerate, whether after the giving of notice or lapse of time or both, any obligation under the Material Contracts) against under or by Interactive or the Subsidiary relating to any Material Contract in connection with any Scheduled Contract or any default thereunder; the execution, delivery and the validity, effectiveness and continuation performance of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require the consummation of the Merger or any third party consentsof the other transactions contemplated hereby and thereby. Immediately following the Effective Time, each Material Contract will continue to be in full force and effect, and valid, binding and enforceable in accordance with but subject to its terms, subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or similar Applicable Laws affecting creditors’ rights generally and general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).
Appears in 1 contract
Contracts. Interactive Schedule 4.14 of the Disclosure Schedule lists the following Contracts as of the date of this Agreement relating to the Purchased Assets and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral Properties (collectively, the "Material Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:):
(a) any Contracts pursuant agreement (or group of related agreements) for the lease of personal property or equipment to which Interactive or the Subsidiary, or another party thereto, is obligated to pay from any Person providing for lease payments in excess of fifty thousand dollars ($50,000)25,000 per annum or which are not terminable by Seller or a Subsidiary without penalty upon 30 days prior written notice or less;
(b) any Contracts pursuant agreement (or group of related agreements), including without limitation, letters of intent) for (i) the purchase of or sale of real property (including purchase options), (ii) the purchase or sale of supplies, products or other personal property that involves consideration in excess of $50,000 (other than purchase orders relating to which Interactive or the Subsidiary acquired the right to use any Intellectual Property construction contracts described in subsection (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiaryc)), or pursuant to which Interactive (iii) the furnishing or receipt of services, including, without limitation, management, operating, listing, brokerage, supply and maintenance agreements, other than agreements that are terminable by Seller or a Subsidiary without penalty upon the Subsidiary has granted to others sale of the right to use, Purchased Assets or which otherwise relates to, its Intellectual Propertyupon 30 days prior written notice or less;
(c) any Contracts agreement (or group of related agreements) relating to the development or construction of any Property providing for payment to any Person in excess of $25,000, other than advances of expenses agreements that are terminable by Seller or a Subsidiary without penalty upon 30 days prior written notice and all development and construction agreements relating to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guaranteesRedevelopment Properties;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% agreement constituting part of the outstanding equity interest (each a "Principal Owner") Assumed Liabilities, limiting the right of Interactive, or Seller to conduct any Affiliate or relative, or Affiliate line of a relative, of any of the foregoing, on the otherbusiness; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);and
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans environmental indemnity agreement benefiting Seller or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees any Subsidiary of Interactive or the Subsidiary;Seller.
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the SubsidiaryIntentionally Omitted. True and correct copies of all Scheduled Contracts have been Seller has made available to ▇▇▇▇▇ Purchaser for Purchaser's review a correct and Advercommcomplete copy of each Material Contract. All Neither Seller nor any Subsidiary has received any written notice that it is in violation of or in default under any of the Scheduled Contracts are Material Contracts, and to the Knowledge of Seller, neither Seller nor any Subsidiary is in violation of or in default under any of the Material Contracts, and neither Seller nor any Subsidiary have given any written notice to any non-Seller-affiliated party informing it that such party is, and to the Knowledge of Seller, no non-Seller-affiliated party is, in violation of or in default of any material term under any of the Material Contracts. Each Material Contract is in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentseffect.
Appears in 1 contract
Sources: Purchase Agreement (New Plan Excel Realty Trust Inc)
Contracts. Interactive (a) Except as set forth in Schedule 2.10 (and other than (x) this Agreement and any Ancillary Agreement and (y) Contracts entered into after the Subsidiary are not parties todate of this Agreement in compliance with Section 4.01), nor is Interactive, none of the Subsidiary, Acquired Company or any of their assets its subsidiaries is a party to or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretoby any:
(ai) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay employment agreement that (A) has an aggregate annual liability for salary and bonuses in excess of fifty thousand dollars $50,000 or ($50,000)B) relates to an employee employed in the United States and is not terminable at will without liability to the Acquired Company or any of its subsidiaries;
(bii) collective bargaining agreement or other Contract with any labor organization, union or association;
(iii) covenant not to compete (other than (A) pursuant to any radius restriction contained in any lease, reciprocal easement or development, construction, operating or similar agreement and (B) any Contracts pursuant to which Interactive exclusive sales territory restriction contained in any distribution or sales representation agreement with a distributor or sales representative, respectively) that limits in any material respect the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in conduct of the business of Interactive the Acquired Company or a subsidiary of the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual PropertyAcquired Company as currently conducted;
(civ) any Contracts (A) continuing Contract for the future purchase of materials, supplies or equipment (other than advances purchase Contracts and orders for inventory in the ordinary course of expenses to employees business), (B) management, service, consulting or other similar Contract (other than Contracts for services in the ordinary course of business) involving loansor (C) advertising agreement or arrangement, loan agreementsin any such case which (x) has an aggregate future liability to any person (other than the Acquired Company or any of its subsidiaries) in excess of $150,000, debt securities, mortgages, deeds (y) is not terminable by the Acquired Company or any of trust, security agreements, suretyships or guaranteesits subsidiaries by notice of not more than 60 days for a cost of less than $50,000 and (z) has a residual term as of the date of this Agreement of more than six months;
(dv) Contract under which the Acquired Company or one or more of its subsidiaries has borrowed any Contracts between Interactivemoney from, on or issued any note, bond, debenture or other evidence of indebtedness to, any person (other than the one hand, and Acquired Company or any of its officers, directors, employees subsidiaries) or any Persons that beneficially own other note, bond, debenture or other evidence of indebtedness of the Acquired Company or one or more of its subsidiaries (other than in favor of the Acquired Company or one or more of its subsidiaries) in any such case which, individually, is in excess of 10.0% $50,000;
(vi) Contract (including so-called take-or-pay or keep well agreements) under which (A) any person (other than the Acquired Company or any of its subsidiaries) has directly or indirectly guaranteed indebtedness, liabilities or obligations of the outstanding equity interest (each a "Principal Owner") of Interactive, Acquired Company or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, of its subsidiaries or is under common control with, (B) the first mentioned person, and "control" means the possession, Acquired Company or one or more of its subsidiaries has directly or indirectly guaranteed indebtedness, liabilities or as trustee obligations of any person, other than the Acquired Company or executorany of its subsidiaries (in each case other than endorsements for the purpose of collection in the ordinary course of business), in any such case which, individually, is in excess of $50,000;
(vii) Contract granting a Lien upon any Acquired Company Property, which Lien is not set forth in Schedule 2.08 or a Permitted Lien;
(viii) Contract (other than this Agreement) with (A) Seller or any of its affiliates (other than the Acquired Company or any of its subsidiaries), other than purchase or sale orders for supplies used in operations or for finished products in the ordinary course of business or (B) any officer or director of the power to direct Acquired Company or cause the direction a subsidiary of the management policies of a person, whether through Acquired Company (other than the ownership of stock, as trustee or executor, employment agreements covered by contract or credit arrangement or otherwiseclause (i) above);
(eix) lease, sublease or similar Contract with any person (other than the Acquired Company or any of its subsidiaries) under which the Acquired Company or one or more of its subsidiaries is a lessor or sublessor of, or makes available for use to any person (other than the Acquired Company or any of its subsidiaries), (A) any deferred compensation agreementsAcquired Company Property or (B) any portion of any premises otherwise occupied by the Acquired Company or one or more of its subsidiaries that, bonusin either case, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees specifies annual payments in excess of Interactive or the Subsidiary$50,000;
(fx) any Contracts lease, sublease or similar Contract with any labor union affecting employees person (other than the Acquired Company or any of Interactive its subsidiaries) under which (A) the Acquired Company or one or more of its subsidiaries is a lessee of, or holds or uses, any machinery, equipment, vehicle or other tangible personal property owned by any person or (B) the SubsidiaryAcquired Company or one or more of its subsidiaries is a lessor or sublessor of, or makes available for use by any person, any tangible personal property owned or leased by the Acquired Company or a subsidiary of the Acquired Company, in any such case which lease or similar Contract specifies payments that on an annual basis exceed $150,000 and is not terminable by the Acquired Company or any of its subsidiaries by notice of not more than 60 days for a cost of less than $50,000;
(gxi) all partnershipContract providing for or relating to any exchange or hedge of risks relating to the prices or level of currencies, joint venture, shareholders' commodities or similar Contracts with any Person;interest rates; or
(hxii) other Contract that has an aggregate future liability to any person (other than the Acquired Company or any of its subsidiaries) in excess of $150,000 and is not terminable by the Acquired Company or any of its subsidiaries by notice of not more than 60 days for a cost of less than $50,000 (other than purchase orders and sales orders in the ordinary course of business).
(b) Except as set forth in Schedule 2.10, (i) all Contracts that limit required to be listed in Schedule 2.10 (such Contracts, the "Acquired Company Contracts") to which the Acquired Company or contain restrictions on the ability of Interactive one or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any more of its capital stock or require the subsidiaries is a party and (ii) all Acquired Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are Licenses and Third Party Licenses material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All conduct of the Scheduled Contracts business of the Acquired Company and its subsidiaries as currently conducted, are in all material respects valid, binding and in full force and effect and constitute legalare in all material respects enforceable by the Acquired Company or the applicable subsidiary of the Acquired Company in accordance with their written terms. Except as set forth in Schedule 2.10, valid the Acquired Company and binding its subsidiaries have performed all material obligations of Interactive required to be performed by them to date under the Acquired Company Contracts to which they are a party, and the Subsidiary they are not in breach or default in any material respect thereunder and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledgeSeller, no circumstances exist which would give rise other party to an Action (any Acquired Company Contract, as defined of the date hereof, is in Section 2.13) against breach or by Interactive or the Subsidiary default in connection with any Scheduled Contract or any default material respect thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consents.
Appears in 1 contract
Contracts. Interactive (a) Except for this Agreement and except as filed with the Subsidiary are not parties toSEC, as of the date hereof, neither the Company nor any of its Subsidiaries is Interactive, a party to or is bound by any Contract that would be required to be filed by the Subsidiary, Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act or any Contract:
(i) in connection with which or pursuant to which the Company or any of their assets its Subsidiaries will spend or properties bound byreceive (or are expected to spend or receive), in the aggregate, more than $5,000,000 during the current fiscal year or during the next fiscal year or that is a Contract with a Governmental Entity;
(ii) that contains any non-competition or other covenants that prohibit or otherwise restrict in any material respect the Company or any of its Subsidiaries or Affiliates from freely engaging in business anywhere in the world (including any agreement restricting the Company or any of its Subsidiaries or Affiliates from competing in any line of business or in any geographic area or that grants to any party most-favored nation or similar rights affecting Parent or any of its Affiliates (other than the Surviving Corporation and its direct and indirect Subsidiaries) following the Effective Time);
(iii) (A) relating to the disposition or acquisition by the Company or any of its Subsidiaries after the date of this Agreement of a material amount of assets, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts"B) of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive the Company or any of its Subsidiaries will acquire after the Subsidiarydate of this Agreement any ownership interest in any other Person or other business enterprise;
(iv) with respect to any material acquisition pursuant to which the Company or any of its Subsidiaries has (A) any continuing indemnification obligations or (B) any “earn-out” or other contingent payment obligations greater than $1,000,000;
(v) relating to the borrowing of money, extension of credit, surety bonds or another party theretoguarantees of Indebtedness, in each case, in excess of $1,000,000 or that relates to a swap or hedging transaction or other derivative agreement for a net amount in excess of $1,000,000;
(vi) that involves any joint venture, partnership or similar arrangement;
(vii) that relates to any settlement (A) with a Governmental Entity or (B) pursuant to which the Company or any of its Subsidiaries is obligated to pay consideration in excess of fifty thousand dollars ($50,000)5,000,000 or that contains any restrictions on the business activities of the Company or any of its Subsidiaries;
(bviii) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to between the Company or necessary in the business any of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between InteractiveSubsidiaries, on the one hand, and any of its officers, directors, employees Affiliate (including any director or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner"officer) of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or its Subsidiaries, on the other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywherehand; and
(jix) any Contracts under which otherwise rights are material granted by or to the Condition Company or any of Interactive its Subsidiaries in or under material Intellectual Property, excluding any Contract under which (A) commercially available software is licensed to the SubsidiaryCompany or any of its Subsidiaries on a non-exclusive basis and which Contract has an aggregate annual value of less than $1,000,000 and (B) a non-exclusive license is granted by the Company or any of its Subsidiaries to a customer in the ordinary course of business (each such Contract as described in this Section 3.14(a), whether or not filed with the SEC, a “Material Contract”).
(b) Section 3.14(a) of the Company Disclosure Letter sets forth a complete and correct list as of the date of this Agreement of all Material Contracts. True Complete and correct copies of all Scheduled Contracts each Material Contract have been made available to ▇▇▇▇▇ Parent prior to the date of this Agreement.
(c) Each Material Contract is valid and Advercomm. All binding on the Company and each of its Subsidiaries party thereto and, to the knowledge of the Scheduled Contracts are Company, any other party thereto, except for such failures to be valid and binding or to be in full force and effect and constitute legalthat would not, valid and binding obligations individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, there is no actual or alleged violation of Interactive and or default under any Material Contract by the Subsidiary andCompany or any of its Subsidiaries party thereto or, to the best knowledge of Interactive the Company, any other party thereto, and no event has occurred that with the Subsidiarylapse of time or the giving of notice or both would constitute a default thereunder by the Company or any of its Subsidiaries party thereto or, the other parties thereto; to the best knowledge of Interactive's the Company, any other party thereto and neither the Subsidiary's knowledgeCompany nor any of its Subsidiaries has received written notice of any such default or event, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive of any termination or the Subsidiary in connection with non-renewal of any Scheduled Contract Material Contract, except where such default or event, or any default thereunder; and such termination or non-renewal would not, individually or in the validityaggregate, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsreasonably expected to constitute a Company Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (TNS Inc)
Contracts. Interactive (a) Section 4.8(a) of the Company Disclosure Letter is a correct and complete list (by reference to the Subsidiary are not parties toapplicable subsection hereof) of:
(i) all Contracts with the Top Customers;
(ii) all Contracts that require a Target Company to pay, nor is Interactiveor entitle a Target Company to receive, or could result in obligations of a Target Company of, consideration in excess of $500,000 per annum or $2,500,000 in the Subsidiary, aggregate;
(iii) all Contracts that restrict a Target Company or any of their its Affiliates from competing with or engaging in any business activity anywhere in the world;
(iv) all Contracts for acquisitions or dispositions (by merger, purchase or sale of assets or properties bound bystock or otherwise) to which a Target Company has continuing material obligations or material rights;
(v) all Contracts concerning joint venture or partnership agreements, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral the sharing of profits;
(collectively, "Contracts"vi) all Contracts with respect to the lease of the following types, except for those Real Property (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:“Real Property Leases”);
(avii) all Contracts with respect to the lease of personal property in excess of $500,000 per annum or $2,500,000 in the aggregate;
(viii) all Contracts with respect to Indebtedness;
(ix) all Contracts with any Governmental Authority;
(x) all broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting and advertising Contracts;
(xi) all Contracts pursuant to which Interactive a Target Company leases, is licensed or the Subsidiaryotherwise authorized to use, distribute, sell, resell or incorporate any Intellectual Property of any other Person (excluding Contracts for Commercial Software having a one-time acquisition cost or license fee of $50,000 or less, or another party thereto, is obligated being subject to pay in excess a subscription fee of fifty thousand dollars (or averaging) less than $50,000);
(b4,000 per month) any Contracts pursuant to or which Interactive or otherwise materially affects the Subsidiary acquired the right ability of a Target Company to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Company Intellectual Property;
(cxii) all Contracts pursuant to which a Target Company leases, licenses or otherwise authorizes another Person to use, distribute, sell, resell, incorporate or develop any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guaranteesmaterial Company Intellectual Property;
(dxiii) all Contracts that contain any fixed or indexed pricing, “most-favored nation” pricing or similar pricing terms or provisions regarding minimum volumes, volume discounts, or rebates;
(xiv) all Contracts between Interactivethat, on the one handtogether with any related Contracts, and any of its officers, directors, employees or any Persons that beneficially own provide for capital expenditures in excess of 10.0% $250,000 for any single project or related series of projects (including a schedule of the outstanding equity interest (amount of capital expenditures provided for pursuant to each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwisesuch Contract);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(hxv) all Contracts that limit provide for the employment or contain restrictions on the ability retention of Interactive any current employee of a Target Company, or the Subsidiary an ongoing or potential severance obligation of a Target Company to declare any current or pay dividendsformer employee, to make distributions or that contains any change of control or similar provisions in respect of or to issue or purchase, redeem or otherwise acquire any employee of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditiona Target Company;
(ixvi) all collective bargaining agreements or Contracts with any Contracts which restrict Interactive union, labor organization or the Subsidiary from freely engaging in business or competing anywhereworks counsel; and
(jxvii) any all Contracts which otherwise are material concerning credit card processing, including merchant agreements.
(b) Correct and complete copies of the Contracts listed in Section 4.8(a) of the Company Disclosure Letter, together with all modifications and amendments thereto, have been delivered to the Condition Purchaser. Except as set forth in Section 4.8(b) of Interactive the Company Disclosure Letter, no Target Company is in default in any material respect, nor has any event occurred which with the giving of notice or the Subsidiary. True and correct copies passage of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are time or both would constitute a default in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist any material respect by a Target Company or which would give rise to an Action (as defined any right of notice, modification, acceleration, payment, cancellation or termination of or by another party under, or in any manner release any party thereto from any obligation under, any Contract and, to the Company’s Knowledge, no other party is in default in any material respect, nor has any event occurred which with the giving of notice or the passage of time or both would constitute a default in any material respect by any other party or which would give rise to any right of notice, modification, acceleration, payment, cancellation or termination of or by a Target Company under, or in any manner release any party thereto from any obligation under, any such Contract. Each of the Contracts listed in Section 2.134.8(a) against of the Company Disclosure Letter is in full force and effect, is valid and enforceable in accordance with its terms subject to the Enforceability Exceptions, and is not subject to any claims, charges, set-offs or by Interactive defenses.
(c) Except as set forth in Section 4.8(c) of the Company Disclosure Letter, the Target Companies have not received any written notice of (nor does the Company have Knowledge of) the decision or intention of any other party thereto to cancel, terminate or not renew any of the Subsidiary Contracts listed in connection Section 4.8(a) of the Company Disclosure Letter, whether in accordance with any Scheduled the terms of the respective Contract or otherwise.
(d) No party to any default thereunder; and of the validity, effectiveness and continuation Contracts listed in Section 4.8(a) of all Scheduled the Company Disclosure Letter has ever challenged or disputed any such Contract or otherwise taken any action against the Target Companies (in writing or otherwise) which would be reasonably likely to result in an adverse effect on any of the Contracts will not be adversely affected by listed in Section 4.8(a) of the transactions contemplated by this Agreement or require any third party consentsCompany Disclosure Letter.
Appears in 1 contract
Contracts. Interactive (a) Schedule 3.19 sets forth a complete and correct list of each of the Subsidiary are not parties tofollowing contracts (including any amendment, nor supplement or modification, whether written or verbal, thereto) to which Seller is Interactive, a party and which relates to the Subsidiary, Business or any of the Purchased Assets (each, a “Material Contract“) other than those which have terminated in accordance with their terms or by consent of the Parties thereto (and which have no continuing rights or obligations thereunder):
(i) any financial services agreement, transmitter agreement and similar agreement entered into by Seller in connection with the conduct of the Business;
(ii) any contract entered into by Seller and a Key Customer;
(iii) any agreement entered into by Seller relating to the outsourcing of customer service;
(iv) any voice response unit and maintenance agreement entered into by Seller;
(v) any agreement pursuant to which Seller engaged a collection agency on its behalf;
(vi) any credit reporting agreement entered into by Seller, including but not limited to Lexis Nexis and Experian credit reporting agreements;
(vii) any agreement entered into between Seller and a temporary staffing agencies regarding temporary employment by Seller;
(viii) all agreements relating to the destruction or retention and preservation of documents;
(ix) any agreements relating to disaster recovery;
(x) any agreement relating to lobbying activities of Seller or any Person engaged by Seller in connection with the conduct of the Business;
(xi) any agreements relating to telephones and communication systems used by Seller in the conduct of the Business;
(xii) all mystery shop and customer survey agreements;
(xiii) any contract for the purchase, sale or license of materials, supplies, goods, services, equipment or other assets or properties bound byrights (including Intellectual Property) that provides for, or subject tofor which transactions entered into or made pursuant thereto have generated, either (A) annual payments by Seller of $20,000 or more or (B) aggregate payments during the term of such contract or agreement by such entity of $50,000 or more;
(xiv) any sales, distribution or other similar contract providing for the sale by Seller of materials, supplies, goods, services, equipment or other assets or rights (including Intellectual Property) that provides for, or for which transactions entered into or made pursuant thereto have generated, either (A) annual payments to Seller of $20,000 or more or (B) aggregate payments during the term of such contract or agreement to such entity of $50,000 or more;
(xv) any contract relating to or affecting the use of any Scheduled Tangible Personal Property which involve annual rental maintenance or other payments in excess of $10,000;
(xvi) any contract pertaining to the use or license of any Scheduled Intellectual Property that involves annual payments in excess of $10,000;
(xvii) any joint venture, partnership, limited liability company or other agreement involving a sharing of profits, losses, costs or liabilities by Seller with any other Person;
(xviii) any mortgage, indenture, security agreement, guaranty, letter of credit or other agreement or instrument relating to the borrowing of money or extension of credit (other than accounts receivable and accounts payable in the ordinary course of business consistent with past practice or security therefor);
(xix) any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements purchase orders or understandings, written contract awards with Governmental Entities reasonably anticipated to involve payments to or oral (collectively, "Contracts") by Seller of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:more than $10,000 annually;
(axx) any Contracts pursuant contracts imposing confidentiality obligations on Seller or any of its Affiliates or any of their employees, officers and agents thereof;
(xxi) any Lease;
(xxii) any non-competition agreement or any other agreement or obligation which purports to which Interactive limit (A) the manner in which, or the Subsidiarylocalities in which, the Business may be conducted or another party thereto, is obligated (B) the ability of Seller to pay in excess provide any type of fifty thousand dollars service relating to the Business; and
($50,000);xxiii) any contract that grants any Person the exclusive right to sell products or provide services within any geographical region.
(b) any Contracts pursuant With respect to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (each Material Contract, except as defined set forth in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
Schedule 3.19]: (i) such Material Contract is the legal and valid obligation of Seller and, to the knowledge of Seller, of each other party thereto, and constitutes the binding and enforceable obligation of Seller and, to the knowledge of Seller, of each other party thereto, in accordance with its terms; (ii) such Material Contract has not been terminated, and Seller is not, nor, to the knowledge of Seller, is any Contracts which restrict Interactive other Person, in breach or default thereunder and, to the knowledge of Seller, no event has occurred (including any event that with notice or lapse of time, or both) that would constitute a material breach or default, or permit termination, modification in any manner adverse to Purchaser or the Subsidiary from freely engaging in business Business or competing anywhereacceleration thereunder; and
(jiii) to the knowledge of Seller, no party has asserted nor has (except by operation of Law) any Contracts which right to offset, discount or otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ any amount owing under such Material Contract except as expressly set forth in such contract; and Advercomm(iv) no written amendments or modifications have been made thereto except those, if any, reflected in the copies previously furnished to Purchaser. All None of the Scheduled rights of Seller under the Material Contracts have been assigned (including by an absolute assignment of rents or contracts) or collaterally assigned, assigned for the purpose of granting security, or are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement any security interest or require any third party consentssimilar encumbrance.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pacific Capital Bancorp /Ca/)
Contracts. Interactive and Other than the Subsidiary are not parties toLaundry Leases, nor is Interactive, SCHEDULE 2.12 hereto lists all of the Subsidiary, or any of their assets or properties bound by, or subject to, any following executory contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements plans, agreements and licenses to which Seller or understandingsTLP is a party or to which it is subject which relate principally to the Business and/or the Subject Assets (complete and correct copies (written descriptions in the case of any oral agreements) of which have been delivered to Buyer), written or oral (collectively, "ContractsMATERIAL CONTRACTS") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:):
(a) any Contracts pursuant to which Interactive employment contract or any plan or contract providing for bonuses, pensions, options, stock purchases, deferred compensation, retirement payments, profit sharing, collective bargaining or the Subsidiarylike, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);any contract or agreement with any labor union
(b) any Contracts pursuant to contract or agreement for the purchase of any asset, material or equipment for $25,000 or more which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary used principally in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual PropertyBusiness;
(c) any Contracts other contracts or agreements creating any obligation of Seller or TLP of $25,000 or more with respect to any such contract;
(other than advances d) any contract or agreement providing for the purchase of expenses to employees all or substantially all of its requirements of a particular product from a supplier;
(e) any contract or agreement which by its terms does not terminate or is not terminable without penalty by Seller or TLP (or any successor or assign) on six (6) months notice;
(f) any contract or agreement not made in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts any contract with any Persondealer, sales representative, sales agent or distributor of the Business;
(h) all Contracts that limit any contract or contain restrictions on agreement containing covenants limiting the ability freedom of Interactive Seller or the Subsidiary TLP to declare compete in any line of business or pay dividends, to make distributions in respect of with any person or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionentity;
(i) any Contracts which restrict Interactive contract or agreement for the Subsidiary from freely engaging purchase of any fixed asset, whether or not such purchase is in business or competing anywhere; andthe ordinary course of business;
(j) any Contracts license agreement (as licensor or licensee) other than software license agreements used by Seller for its entire laundry room business, which otherwise are material not being transferred or licensed under this Agreement;
(k) any indenture, mortgage, promissory note, loan agreement, guaranty or other agreement or commitment for the borrowing of money and any related security agreement;
(l) any bond (bid, performance or other), letter of credit, agreement of guarantee, surety or indemnification (other than in favor of Seller), or any commitment to the Condition issue any such bond, letter of Interactive credit, agreement of guarantee, surety or the Subsidiaryindemnification;
(m) any contract or agreement with any current or former officer, employee, consultant, director or stockholder of Seller or TLP or with any persons or organizations controlled by or affiliated with any of them;
(n) any partnership, joint venture, or other similar contract, arrangement or agreement; or
(o) other than Laundry Leases, any programs, agreements or arrangements with respect to prepaid rent, guaranteed commissions, laundry facility renovations and other similar arrangements. True Each Material Contract is valid and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are is in full force and effect and constitute constitutes the legal, valid and binding obligations obligation of Interactive and the Subsidiary Seller or TLP, as applicable, and, to the best knowledge of Interactive and the SubsidiarySeller, the other parties thereto; , enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors generally and subject to the best rules of Interactive's law governing (and all limitations on) specific performance, injunctive relief and other equitable remedies. Neither Seller, TLP, nor, to the Subsidiary's knowledgeknowledge of Seller and except as disclosed in SCHEDULE 2.12 attached hereto, any other party to any Material Contract, is in default under, or in violation of, any provisions thereof, and no circumstances exist which condition or event or facts exists which, with notice, lapse of time or both would give rise constitute a default thereof on the part of Seller or TLP or, to an Action (as defined the knowledge of Seller, on the part of any other party thereto in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not such case that could reasonably be adversely affected by the transactions contemplated by this Agreement or require any third party consentsexpected to have a Material Adverse Effect.
Appears in 1 contract
Contracts. Interactive and (a) Except as set forth in Section 3.11 of the Subsidiary are not parties to, nor is InteractiveDisclosure Schedule, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretoCompany is not a party to any:
(a1) Contract for the employment of any Contracts officer, director, employee or consultant, or with any labor union or association that is not terminable at will without cost, liability or expense to the Company;
(2) Contract pursuant to which Interactive any Person who is or the Subsidiarywas an officer, director, employee, consultant, or another party thereto, is obligated to pay in excess an Affiliate or Associate of fifty thousand dollars ($50,000)any such Person has a material interest;
(b3) any Contracts pursuant Contract relating to which Interactive the borrowing or lending of money, the factoring of accounts receivable or the Subsidiary acquired the right to use guarantee of any Intellectual Property (as defined in Section 2.9 below) obligations for borrowed money, excluding trade payables or information that is material to or necessary in the business endorsements made for purposes of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees collection in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d4) any Contracts between Interactive, on Contract having an unexpired term of more than six months after the one hand, and any of its officers, directors, employees Closing or any Persons that beneficially own involving payments after the Closing in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or $25,000 in any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise)year;
(e5) Contract for the production or supply by it of goods or services having unexpired terms (including any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and periods covered by options to renew exercisable by other employee compensation policies and agreements affecting employees parties) of Interactive or more than 90 days after the SubsidiaryClosing;
(f6) any Contracts with any labor union affecting employees of Interactive Contract for capital expenditures or the Subsidiarypurchase by it of materials, supplies, equipment or services which requires payments by the Company in excess of $25,000 after the Closing;
(g7) all partnership, joint venture, shareholders' licenses (whether as licensor or similar Contracts with licensee of any PersonIntellectual Property) or royalty agreements;
(h) all Contracts that limit 8) distributor, dealer, manufacturer's representative, sales agency, franchise or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionadvertising Contracts;
(i9) Contract relating to (A) the future disposition or acquisition of any Assets and Properties, other than dispositions or acquisitions in the ordinary course of business consistent with past practice, and (B) any Contracts which restrict Interactive merger or other business combination;
(10) Contract containing covenants not to compete in any business or geographical area or restricting it from the use or disclosure of any information in its possession; or
(b) Except as set forth in Section 3.11 of the Disclosure Schedule:
(1) each Contract required to be disclosed in Section 3.11(a) of the Disclosure Schedule (each, a "Material Contract") is in all material respects valid and in full force and effect;
(2) the Company has performed in all material respects all material obligations required to be performed by it and is not in default (and with the giving of notice or the Subsidiary from freely engaging lapse of time will not be in business default), and will not be in default entitling the other party thereto to terminate such Contract as a result of the consummation of the transactions contemplated by this Agreement, under any Material Contract;
(3) the Company Group has not received notice that any party to any Material Contract intends or competing anywheremay intend to cancel or terminate any Material Contract or to exer cise or not exercise options or rights under any such Material Contract;
(4) all liabilities and obligations of the Company required to be paid or performed by the Company on or before the Closing under all Material Contracts have been, or will have been on the Closing, duly paid in full, performed or accrued by the Company in all material respects consistent with past practices; and
(j5) any Contracts which otherwise are material to the Condition consummation of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or (1) does not require any third party consentsconsent under any Material Contract, and (2) will not result in the rightful termination of any material right or privilege now enjoyed by the Company under any Material Contract.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") Section 5.17 of the Disclosure Schedule lists the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretocontracts and other agreements to which BBP is a party:
(a) any Contracts pursuant agreement (or group of related agreements) for the lease of personal property to which Interactive or the Subsidiary, or another party thereto, is obligated to pay from any Person providing for lease payments in excess of fifty thousand dollars ($50,000)25,000 per annum;
(b) any Contracts pursuant to which Interactive agreement concerning a partnership or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertyjoint venture;
(c) any Contracts agreement (other than advances or group of expenses to employees in the ordinary course related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation or under which a Security Interest has been imposed on any of business) involving loansits assets, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships tangible or guaranteesintangible;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees agreement concerning confidentiality or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise)noncompetition;
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans agreement with any Shareholder or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees any Affiliate of Interactive or the Subsidiaryany Shareholder;
(f) any Contracts with any labor union affecting employees profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other material plan or arrangement for the benefit of Interactive its current or the Subsidiaryformer directors, officers, and employees;
(g) all partnershipany agreement for the employment of any individual on a full-time, joint venturepart-time, shareholders' consulting, or similar Contracts with any Personother basis providing annual compensation in excess of $50,000 or providing severance benefits;
(h) all Contracts that limit any agreement under which it has borrowed, advanced or contain restrictions on the ability of Interactive or the Subsidiary loaned any amount to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require directors, officers and employees outside the Company or any Subsidiary to maintain specified financial ratios or levels Ordinary Course of net worth or other indicia of financial conditionBusiness;
(i) any Contracts agreement under which restrict Interactive the consequences of a default or the Subsidiary from freely engaging in business or competing anywheretermination could have a Material Adverse Effect on BBP; andor
(j) any Contracts which otherwise are agreements with employees or consultants for the provision of any material goods or services other than on arm's-length terms and in the Ordinary Course of Business. BBP has delivered to the Condition Fundtech a correct and complete copy of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All each written agreement listed in Section 5.17 of the Scheduled Contracts are Disclosure Schedule (as amended to date) and a written summary setting forth the terms and conditions of each oral agreement referred to in Section 5.17 of the Disclosure Schedule. Except as set forth in Section 5.17 of the Disclosure Schedule, with respect to each such agreement: (A) the agreement is legal, valid, binding, enforceable against BBP and in full force and effect; (B) the agreement will continue to be legal, valid, binding, enforceable against BBP and the respective counterparty, and in full force and effect and constitute legal, valid and binding obligations on identical terms following the consummation of Interactive and the Subsidiary andtransactions contemplated hereby; (C) neither BBP or, to the best knowledge Knowledge of Interactive BBP, any other party thereto, is in breach or default in any material respect, and no event has occurred which with notice or lapse of time would constitute such a breach or default by, or permit termination, modification, or acceleration, under the Subsidiaryagreement; and (D) no party has repudiated any provision of the agreement. Except as set forth in Section 5.17 of the Disclosure Schedule, the other parties thereto; to consummation of the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts transaction described herein will not affect any of the agreements disclosed herein in a manner that could reasonably be adversely affected by expected to have a Material Adverse Effect on the transactions contemplated by this Agreement or require any third party consentsbusiness of BBP.
Appears in 1 contract
Contracts. Interactive and (i) Section 3.01(h) of the Subsidiary are not parties toCompany Letter sets forth (with specific reference to the subsection of this Section 3.01(h) to which such Contract relates, nor is Interactive, including any further subsection) a list as of the Subsidiary, date of this Agreement of:
(A) each Contract pursuant to which the Company or any of their assets its Subsidiaries has agreed not to compete with any person in any area or properties bound by, to engage in any activity or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiarybusiness, or pursuant to which Interactive any material benefit or the Subsidiary has granted right is required to others the right to usebe given or lost, or which otherwise relates toany material penalty or detriment is incurred, its Intellectual Propertyas a result of so competing or engaging;
(cB) each Contract to or by which the Company or any of its Subsidiaries is a party or bound (1) providing for exclusivity, (2) pursuant to which the Company or any of its Subsidiaries is restricted in any material respect, or (3) which after the Effective Time would restrict Parent or any of its Subsidiaries in any material respect, in each case which exclusivity or restrictions apply to the development, manufacture, marketing, franchising or distribution of their respective products or services or otherwise with respect to the operation of their respective businesses;
(C) each Contract to or by which the Company or any of its Subsidiaries is a party or bound or with respect to which the Company or any of its Subsidiaries has any material obligation with (1) any Contracts affiliate of the Company or any of its Subsidiaries, (2) any Company Personnel, (3) any union or other labor organization or (4) any affiliate of any such person (other than, in each case, (I) offer letters or employment agreements that are terminable at will by the Company or any of its Subsidiaries both without any penalty and without any obligation of the Company or any of its Subsidiaries to pay severance or other compensation or benefits (other than advances accrued base salary, accrued commissions, accrued bonuses, accrued vacation pay, accrued floating holidays and legally mandated benefits), (II) Benefit Plans and Benefit Agreements other than offer letters or employment agreements and (III) Contracts between the Company or one of expenses its Subsidiaries and any of the Company’s Subsidiaries);
(D) each Contract under which the Company or any of its Subsidiaries has incurred any indebtedness having an aggregate principal amount in excess of $250,000;
(E) each Contract to employees or by which the Company or any of its Subsidiaries is a party or bound creating or granting a Lien (including Liens upon properties or assets acquired under conditional sales, capital leases or other title retention or security devices), other than (1) Liens for taxes assessments and other governmental charges not yet due and payable, that are payable without penalty or that are being contested in good faith and for which adequate reserves have been established, (2) Liens for landlords’, carriers’, warehousemen’s, mechanics’, repairmen’s, workers’ or similar Liens incurred in the ordinary course of business, in each case for sums not yet due and payable or due but not delinquent or being contested in good faith by appropriate proceedings, (3) involving loansLiens incurred in the ordinary course of business in connection with workers’ compensation, loan agreementsunemployment insurance and other types of social security or to secure the performance of tenders, debt securitiesstatutory obligations, mortgagessurety and appeal bonds, deeds bids, leases, government contracts, performance and return of trust, security agreements, suretyships or guarantees;
money bonds and similar obligations and (d4) any Contracts between Interactive, on Liens incurred in the one hand, and any ordinary course of its officers, directors, employees or any Persons business that beneficially own are not reasonably likely to adversely interfere in excess of 10.0% a material way with the use of the outstanding equity interest properties or assets encumbered thereby (each a "Principal Owner") of Interactivecollectively, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise“Permitted Liens”);
(eF) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans each Contract to or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require by which the Company or any Subsidiary of its Subsidiaries is a party or bound (other than Benefit Plans and Benefit Agreements) containing any provisions contemplating or relating in any way to maintain specified financial ratios a “change in control” or levels similar event with respect to the Company or one or more of net worth its Subsidiaries, including provisions requiring consent or approval of, or notice to, any Governmental Entity or other indicia person in the event of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging a change in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All control of the Scheduled Contracts are in full force and Company or one or more of its Subsidiaries, or otherwise having the effect and constitute legal, valid and binding obligations of Interactive and providing that the Subsidiary and, to consummation of the best knowledge Merger or any of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require the execution, delivery or effectiveness of this Agreement will materially conflict with, result in a material violation or material breach of, or constitute a default (with or without notice or lapse of time or both) under, such Contract, or give rise under such Contract to any right of, or result in, a termination, right of first refusal, material amendment, revocation, cancelation or material acceleration of any obligation, or a loss of a material benefit or the creation of any material Lien upon any of the properties or assets of the Company, Parent or any of their respective Subsidiaries, or to any increased, guaranteed, accelerated or additional material rights or material entitlements of any person;
(G) each Contract pursuant to which the Company or any of its Subsidiaries (1) consented to or agreed not to assert rights with respect to the use or registration by a third party consentsof the trademark “Teavana” or any similar trademark or (2) has received a third party’s consent to the use or registration by the Company or any of its Subsidiaries of the trademark “Teavana” or any similar trademark;
(H) each Contract to or by which the Company or any of its Subsidiaries is a party or bound granting the other party to such Contract or a third party “most favored nation” pricing or terms that (1) applies to the Company or any of its Subsidiaries or (2) following the Effective Time, would apply to Parent or any of its Subsidiaries other than the Surviving Corporation or its Subsidiaries;
(I) each Contract containing any “non-solicitation”, “no-hire” or similar provision that restricts the Company or any of its Subsidiaries in any material respect;
(J) each Contract to or by which the Company or any of its Subsidiaries is a party or bound forming or establishing, or relating to the formation or establishment of, any joint venture (whether in partnership, limited liability company or other organizational form) or alliance or similar arrangement;
(K) each Contract to or by which the Company or any of its Subsidiaries is a party or bound with any Governmental Entity;
(L) each Contract to or by which the Company or any of its Subsidiaries is a party or bound entered into in the last five years in connection with the settlement or other resolution of any suit, claim, action, investigation or proceeding;
(M) each Contract to or by which the Company or any of its Subsidiaries is a party or bound containing any standstill provisions which in any way limit the ability of the Company or any of its Subsidiaries to acquire the securities or assets of any person;
(N) each Contract between the Company or any of its Subsidiaries and any Major Vendor, including any material terms and conditions that are in effect as of the date of this Agreement and referenced in purchase orders with any such Major Vendor (other than ordinary course terms and conditions regarding purchase price, amounts and delivery) and any written or oral commitments to purchase additional products, supplies, services or ingredients from any such Major Vendor in excess of $100,000;
(O) each Contract to or by which the Company or any of its Subsidiaries is a party or bound that contains any 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 the ordinary course of business;
(P) each Contract not otherwise disclosed under this Section 3.01(h)(i) which has aggregate future sums due to or from the Company or any of its Subsidiaries, taken as a whole, (1) during the period commencing on the date of this Agreement and ending on the 12-month anniversary of this Agreement, in excess of $500,000 or (2) of more than $1,500,000 during the life of the Contract; and
(Q) except for the Contracts disclosed above, each material Contract to or by which the Company or any of its Subsidiaries is a party or bound not made in the ordinary course of business. The Contracts of the Company or any of its Subsidiaries of the type referred to in clauses (A) through (Q) of this subsection (i) (whether in effect on the date of this Agreement or entered into following the date of this Agreement and prior to the Closing Date), together with the Franchise Agreements, are collectively referred to in this Agreement as “Specified Contracts”. The Company has made available to Parent a complete and correct copy of each of the Specified Contracts, including all amendments thereto. Each Specified Contract is in full force and effect (except for those Contracts that have expired in accordance with their terms) and is a legal, valid and binding agreement of the Company or such Subsidiary, as the case may be, and, to the knowledge of the Company, of each other party thereto, enforceable against the Company or such Subsidiary, as the case may be, and, to the knowledge of the Company, against the other party or parties thereto, in each case, in accordance with its terms. Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (x) each of the Company and its Subsidiaries is not (with or without notice or lapse of time or both) in breach or default under any Specified Contract and has not waived or failed to enforce any rights or benefits thereunder (other than in the ordinary course of business), (y) no other party to any of the Specified Contracts is (with or without notice or lapse of time or both) in breach or default thereunder and (z) there has occurred no event that (with or without notice or lapse of time or both) would give to others any right of termination, material amendment or cancellation of any Specified Contract.
Appears in 1 contract
Sources: Merger Agreement (Starbucks Corp)
Contracts. Interactive Section 4.16 of the Disclosure Schedule lists the following contracts and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, other agreements to which SkateNation or any of their assets or properties bound byits Subsidiaries is a party (together with the Ground Leases and the Space Leases, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, the "SkateNation Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:):
(a) any Contracts pursuant agreement (or group of related agreements) for the lease of personal property to which Interactive or the Subsidiary, or another party thereto, is obligated to pay from any Person providing for lease payments in excess of fifty thousand dollars ($50,000)50,000 per annum;
(b) any Contracts pursuant to which Interactive agreement (or group of related agreements) for the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) purchase or information that is material to or necessary in the business sale of Interactive or the Subsidiaryraw materials, commodities, supplies, products, or pursuant to which Interactive or the Subsidiary has granted to others the right to useother personal property, or for the furnishing or receipt of services, the performance of which otherwise relates towill extend over a period of more than one year, its Intellectual Propertyor involve consideration in excess of $100,000;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships agreement concerning a partnership or guaranteesjoint venture;
(d) any Contracts between Interactiveagreement (or group of related agreements) under which it has created, incurred, assumed, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation, in excess of $50,000 or under which it has imposed a Security Interest on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise)Assets;
(e) any deferred compensation agreementsagreement concerning confidentiality or noncompetition, bonus, pension, profit sharing, stock option or which otherwise restricts in any material manner the free use by SkateNation and incentive plans its Subsidiaries of its Assets or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees data made available to it in the Ordinary Course of Interactive or the SubsidiaryBusiness;
(f) any Contracts agreement with the Seller or any labor union affecting employees of Interactive or the SubsidiaryAffiliates thereof (other than SkateNation and its Subsidiaries);
(g) all partnershipany profit sharing, joint venturestock option, shareholders' stock purchase, stock appreciation, deferred compensation, severance, or similar Contracts with other material plan or arrangement for the benefit of the current or former directors, officers, and/or employees of SkateNation or any Personof its Subsidiaries;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditioncollective bargaining agreement;
(i) any Contracts which restrict Interactive written agreement for the employment of any individual on a full-time, part-time, consulting, or the Subsidiary from freely engaging other basis providing annual compensation in business excess of $25,000 or competing anywhere; andproviding severance benefits;
(j) any Contracts agreement under which otherwise are it has advanced or loaned any amount to any of its directors, officers, and/or employees;
(k) any agreement under which the consequences of a default or termination could have a Material Adverse Effect;
(l) any agreement with any tenant of any space at the Property that involves annual consideration in excess of $10,000;
(m) any other agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000 or that is material to the Condition business of Interactive SkateNation or the Subsidiaryany of its Subsidiaries. True and correct copies of all Scheduled Contracts have been The Seller has made available to ▇▇▇▇▇ the Buyer a correct and Advercomm. All complete copy of each written agreement (as amended to date) listed in Section 4.16 of the Scheduled Contracts are Disclosure Schedule. With respect to each agreement required to be identified in Section 4.16 of the Disclosure Schedule: (w) the agreement is in full force and effect and constitute and, the Seller's Knowledge, is the legal, valid and binding obligations obligation of Interactive the parties thereto other than SkateNation or any of its Subsidiaries (the "Other Parties") and enforceable against the Subsidiary andOther Parties in accordance with its terms, subject to the Remedies Exception; (x) neither SkateNation nor any of its Subsidiaries nor, to the best knowledge Seller's Knowledge, any of Interactive the Other Parties, is in breach, violation or default, and to Seller's Knowledge, no event has occurred which with notice or lapse of time or both would constitute a breach, violation or default by SkateNation or any of its Subsidiaries, or permit termination, modification, or acceleration by the SubsidiaryOther Parties, under the other parties theretoagreement; (y) neither SkateNation or any of its Subsidiaries nor, to the best Seller's Knowledge, any of Interactive's the Other Parties, has repudiated any provision of the agreement and (z) no consent is required of any of the Subsidiary's knowledgeOther Parties by virtue of the execution, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against delivery or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; performance of this Agreement, and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement will not result in the termination or require any third party consentsmodification of the agreement. No representations or warranties are made in this Section 4.16 with respect to the Ground Leases or the Space Leases.
Appears in 1 contract
Contracts. Interactive and Section of the Subsidiary are not parties toWinning Edge Disclosure Letter lists the following written arrangements (including, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandingswithout limitation, written or oral (collectively, "Contracts"agreements) of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretoto which Winning Edge is a party:
(a) any Contracts pursuant written arrangement (or group of related written arrangements) for the lease of personal property from or to which Interactive or the Subsidiary, or another party thereto, is obligated to pay third parties providing for lease payments in excess of fifty thousand dollars ($50,000)25,000 per annum including such lease arrangements with purchase commitments or similar obligations known to Winning Edge other than those listed pursuant to Section in excess of $25,000;
(b) any Contracts pursuant to written arrangement (or group of related written arrangements) for the licensing or distribution of software, products or other personal property or for the furnishing or receipt of services, (i) which Interactive or involves more than the Subsidiary acquired the right to use any Intellectual Property sum of $25,000 per annum, (as defined ii) in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary Winning Edge has granted rights to others license, sublicense or copy, “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 or has agreed to purchase goods or services exclusively from a certain party, and (iii) which calls for performance by Winning Edge that as of the right to use, or which otherwise relates to, its Intellectual Propertydate hereof has not been fully completed;
(c) any Contracts written arrangement establishing a partnership or joint venture;
(d) any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed or guaranteed (or may create, incur, assume or guarantee) indebtedness (including capitalized lease obligations) involving more than $25,000 or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(e) a list of all parties to any written arrangement concerning confidentiality, non-disclosure or noncompetition;
(f) any written arrangement involving any of the stockholders of Winning Edge or their Affiliates;
(g) any written arrangement under which the consequences of a default or termination could have a Material Adverse Effect on Winning Edge;
(h) any other written arrangement (or group of related written arrangements) either (i) involving (A) more than advances $25,000 and (B) performance by Winning Edge that as of expenses to employees the date hereof has not been fully completed, or (ii) not entered into in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts written arrangement under which restrict Interactive Winning Edge provides maintenance or support services to any third party with regard to Winning Edge’s products and any written arrangement containing a commitment by Winning Edge to provide support for any such products for more than one year from the Subsidiary from freely engaging date of this Agreement involving, in business or competing anywhere; andeach case, more than $25,000 (other than arrangements which by their terms permit the customer to extend such services after the expiration of the initial one year term);
(j) any Contracts written arrangement by which otherwise Winning Edge has agreed to make available any consulting, enablement consulting, or education services (i) having a value in excess of $25,000 and (ii) providing for performance by Winning Edge that as of the date hereof has not been fully completed; and
(k) any other material contract or agreement as such terms are material defined in Regulation S-K promulgated under the Securities Act, to the Condition of Interactive which Winning Edge is a party. Winning Edge has delivered to or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ ProGames a correct and Advercommcomplete copy of each written arrangement. All of With respect to each such written arrangement so listed: (i) the Scheduled Contracts are written arrangement is legal, valid, binding and enforceable and in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary with respect to Winning Edge and, to the best knowledge of Interactive and the SubsidiaryWinning Edge’s knowledge, the written arrangement is legal, valid, binding and is enforceable and in full force and effect with respect to each other parties thereto; party thereto (in each case except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting the enforcement of creditor’s rights generally, and except that the availability of equitable remedies, including specific performance, is subject to the best discretion of Interactive's the court before which any proceeding therefor may be brought); (ii) the written arrangement will continue to be legal, valid, binding and enforceable and in full force and effect against Winning Edge, and to Winning Edge’s knowledge against each other party thereto, immediately following the Subsidiary's Closing in accordance with the terms thereof (in each case except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting the enforcement of creditor’s rights generally, and except that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding therefor may be brought) as in effect prior to the Closing; and (iii) Winning Edge is not in breach or default, and, to Winning Edge’s knowledge, no circumstances exist other party thereto is in breach or default, and no event has occurred which with notice or lapse of time would give rise constitute a breach or default or permit termination, modification, or acceleration, under the written arrangement; except, in each case, for breaches, defaults and events that would not have a Material Adverse Effect on Winning Edge. Winning Edge is not a party to an Action (as defined any oral contract, agreement or other arrangement which, if reduced to written form, would be required to be listed in Section 2.13) against or by Interactive or of the Subsidiary in connection with any Scheduled Contract or any default thereunder; and Winning Edge Disclosure Letter under the validity, effectiveness and continuation terms of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsSection .
Appears in 1 contract
Sources: Merger Agreement (Winning Edge International, Inc.)
Contracts. Interactive and 12.1 So far as the Subsidiary Warrantors are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following typesaware, except for those (the "Scheduled Contracts") listed in Part 2.8 agreements and arrangements referred to the Disclosure letter, neither the Company nor any of Schedule II heretothe Subsidiaries is a party to, or otherwise subject to any agreement, arrangement, understanding or commitment which:
(a) any Contracts pursuant to which Interactive is of an unusual or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);exceptional nature; or
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary not in the business ordinary and usual course of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;Business; or
(c) may be terminated as a result of a Change of Control of the Company or any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;Subsidiaries; or
(d) any Contracts between Interactive, on other than requirements of law or regulation restricts the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% freedom of the outstanding equity interest (each a "Principal Owner") of Interactive, Company or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, Subsidiaries to carry on the other; ("Affiliate" of a person means a person that directly whole or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, any part of the power to direct or cause the direction Business in any part of the management policies of a person, whether through the ownership of stock, world in such manner as trustee or executor, by contract or credit arrangement or otherwise);it thinks fit; or
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans involves agency or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;distributorship; or
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all involves partnership, joint venture, shareholders' consortium, joint development, shareholder or similar Contracts with arrangements; or
(g) involves the grant of any Person;sole or exclusive rights by or to the Company or any of the Subsidiaries; or
(h) all Contracts that limit (other than the leases pursuant to which the Company and the Subsidiaries occupying the Properties), is incapable of complete performance in accordance with its terms within six months after the date on which it was entered into; or
(i) cannot be readily fulfilled or contain restrictions on performed by the ability of Interactive Company or the relevant Subsidiary to declare on time and without undue or pay dividends, to make distributions in respect unusual expenditure of money and effort; or
(j) involves an aggregate consideration payable by or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary of the Subsidiaries in excess of £25,000; or
(k) requires the Company or any of the Subsidiaries to maintain specified financial ratios pay any commission, finders’ fee, royalty or levels the like; or
(l) is for the supply of net worth services by or to the Company or any of the Subsidiaries on terms under which retrospective or future discounts, price reductions or other indicia of financial condition;incentives are given; or
(im) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhereis not on arm’s-length terms; andor
(jn) any Contracts is a finance lease, hire purchase, rental or credit sale agreement or which otherwise provides for the purchase or right to purchase any asset by instalment payments.
12.2 There are no outstanding or ongoing negotiations of material importance to the Condition of Interactive business, profits or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All assets of the Scheduled Contracts are in full force and effect and constitute legalCompany or any of the Subsidiaries, valid and binding obligations of Interactive and the Subsidiary andor any outstanding quotations or tenders for a contract that, to the best knowledge of Interactive and the Subsidiaryif accepted, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to a contract which would result in that counterparty being a Material Counterparty, or a contract of any other type as referred to in paragraph 12.1 of Part 1 of this Schedule 5.
12.3 Neither the Company nor any of the Subsidiaries, nor any other counterparty is in default of any agreement, arrangement, undertaking or commitment a default of which would be material having regard to the trading, profits or financial position of the Company and the Subsidiaries. No such default has been threatened, and there are no facts or circumstances likely to give rise to any such default.
12.4 No notice of termination of any contract which involves an Action (as defined in Section 2.13) against aggregate consideration payable by or by Interactive or to the Subsidiary in connection with any Scheduled Contract Company or any default thereunder; of the Subsidiaries in excess of £25,000 in any one calendar year has been served by or on the Company or any of the Subsidiaries and there are no grounds for the validitytermination, effectiveness and continuation rescission, avoidance, repudiation by any party of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentssuch Contract.
Appears in 1 contract
Sources: Share Purchase Agreement (Bright Horizons Family Solutions Inc.)
Contracts. Interactive (a) Schedule 4.20(a) describes all contracts (except for usual and ordinary purchase orders executed in the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any normal course of their assets or properties bound by, or subject to, any contractsbusiness), agreements, notesleases, commitments, instruments, franchisesplans, leases, permits or licenses, commitments, arrangements or understandings, whether written or oral oral, with respect to the Business to which the Company is a party or is otherwise bound, of the type described below (collectively, "the “Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:”):
(ai) any Contracts pursuant to which Interactive all agreements or commitments for the sale by the Business of products or services, or the Subsidiarypurchase by the Business of raw materials, products or another party theretoservices;
(ii) all agreements or commitments for the purchase by the Business of machinery, equipment or other personal property;
(iii) all capitalized leases, pledges, conditional sale or title retention agreements;
(iv) all employment agreements and commitments and all consulting or severance agreements or arrangements, including but not limited to all confidentiality agreements, non-disclosure agreements and agreements governing the ownership of work product;
(v) all agreements relating to the consignment or lease of personal property (whether the Company is obligated to pay in excess of fifty thousand dollars ($50,000lessee, sublessee, lessor or sublessor);
(vi) all license, royalty or other agreements relating to the Intellectual Property Rights;
(vii) all agreements prohibiting the Company from freely engaging in the Business in any geographic area;
(viii) all agreements to provide rebates to customers of the Business, to the extent not reflected as a liability on the Financial Statements; and
(ix) any agreement other than those covered by clauses (i) through (viii) above relating to the Business and involving payment or receipt of more than $5,000 in the aggregate and all agreements which otherwise materially affect the Business.
(b) To the Company’s or Seller’s knowledge none of the other parties to any such Contracts pursuant intends to which Interactive terminate or materially alter the Subsidiary acquired the right to use any Intellectual Property (provisions of such Contracts either as defined a result of transactions contemplated hereby or otherwise, except as disclosed in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;Schedule 4.20(b).
(c) Except as disclosed in Schedule 4.20(c), the Company is not in, nor has the Company given or received notice of, any Contracts default or claimed, purported or alleged default, or facts that, with notice or lapse of time, or both, would constitute a default (other than advances or give rise to a termination right) on the part of expenses to employees any party in the ordinary course performance of business) involving loans, loan agreements, debt securities, mortgages, deeds any obligation to be performed under any of trust, security agreements, suretyships or guarantees;the Contracts.
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct complete copies of all Scheduled Contracts written Contracts, including any amendments thereto, have been made available delivered to ▇▇▇▇▇ Buyer and Advercomm. All of such documents constitute the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations obligation of Interactive and the Subsidiary Company and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's Company’s and/or Seller’s knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default each other party purportedly obligated thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consents.
Appears in 1 contract
Sources: Stock Purchase Agreement (Photonic Products Group Inc)
Contracts. Interactive (i) The Disclosure Statement sets out a true and complete list of all Contracts by operating division (A) that require payments by the Subsidiary Aluma Group to any single vendor in excess of $250,000 in any fiscal year and are not parties terminable by the Aluma Group on less than sixty (60) days’ notice; (B) still in effect which at inception was expected to generate revenues in excess of $250,000 (local currency); (C) limit the freedom or ability of any member of the Aluma Group to compete in any line of business or in any geographic area; (D) with any Director, Officer and Shareholder of the Aluma Group; (E) under which the Aluma Group created, incurred, assumed or guaranteed any Funded Indebtedness in excess of $250,000; (F) any material agreement of guarantee or similar commitment with respect to, nor is Interactivethe obligations, the Subsidiaryliabilities (whether accrued, absolute, contingent or otherwise) or indebtedness of any other person other than a subsidiary or parent of Aluma or in connection with any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral the Funded Indebtedness; (collectively, "Contracts"G) which the Aluma Group entered into outside of the following typesOrdinary Course and is material to the Business; or (H) to the extent not required above, except for those all leases related to the Leased Equipment that is part of the Aluma Group’s fleet of rental equipment (the "Scheduled Disclosed Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any ). There are no Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All conduct of the Scheduled Business as currently conducted by the Aluma Group other than the Disclosed Contracts.
(ii) Each member of the Aluma Group and, to the knowledge of the Aluma Group, the other parties to the Disclosed Contracts, is in good standing under, and is entitled to all benefits under the Disclosed Contracts are to which it is a party, subject to any reserves reflected on the Business Financial Statements, and no such Disclosed Contract is dependent on the guarantee of, or security provided by, any other person. To the Aluma Group’s knowledge, there is no state of facts that (with or without the lapse of time, the giving of notice or both) would constitute a breach or default or result in the acceleration of the performance, cancellation, termination, or modification by any party to any such Disclosed Contract.
(iii) Each of the Disclosed Contracts is legal, valid, binding and enforceable against the member of the Aluma Group which is a party thereto and, to the knowledge of the Aluma Group, the other parties thereto, and is in full force and effect and constitute legalin all material respects in accordance with its terms. except to the extent that the failure of any one or more of such Disclosed Contracts would not, valid and binding obligations taken as a whole, be material to the Aluma Group. Neither the member of Interactive and the Subsidiary andAluma Group which is a party thereto nor, to the best knowledge of Interactive the Aluma Group, any other party thereto is in material breach or default under any of the Disclosed Contracts. The Aluma Group has not received any notice or other communication (whether written or otherwise) of any actual or alleged breach or default under any Disclosed Contract, except to the extent such breaches or defaults have been cured or would not, taken as a whole, be material to the Aluma Group.
(iv) The Assumed Contracts and the Subsidiary, Operating Letters of Credit are all of the other parties thereto; to Contracts necessary for the best operation of Interactive's the Business in all material respects and the Subsidiary's knowledgeownership of the Assets after the Closing as operated and owned by the Aluma Group as of the date hereof.
(v) There are no Contracts (including the Disclosed Contracts) for services or materials in respect of the Business that are not at arm’s length. The Disclosure Statement contains a true, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; correct and the validity, effectiveness and continuation complete list of all Scheduled Contracts will not be adversely affected outstanding loans and advances made by the transactions contemplated Aluma Group in respect of the Business to any employee, director, consultant or independent contractor, other than routine travel, meal and related advances made to Employees in the Ordinary Course.
(vi) There are no renegotiations of any material amounts paid or payable by this Agreement the Aluma Group under any current or require completed Contract that have not been reserved for by the Aluma Group in accordance with GAAP (excluding amounts payable to any third party consentsof the Aluma Creditors).
Appears in 1 contract
Sources: Asset Purchase Agreement (Brand Intermediate Holdings Inc)
Contracts. Interactive and ss.3.12 of the Subsidiary are not parties to, nor is Interactive, Disclosure Schedule lists (by Subparagraph) the Subsidiary, or any of their assets or properties bound by, or subject to, any following contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, and other written arrangements or understandings, written or oral (collectively, "Contracts") of to which the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretoPurchased Company is a party to:
(a) any Contracts pursuant to which Interactive Any written agreement or the Subsidiary, arrangement concerning a partnership or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)joint venture;
(b) any Contracts pursuant to Any written agreement (or group of related written arrangements) under which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiaryit has created, incurred, assumed, or pursuant to guaranteed (or may create, incur, assume, or guarantee) non-trade indebtedness involving more than $5,000, or under which Interactive or the Subsidiary it has granted to others the right to useor permitted (or may grant or permit) a Security Interest on any of its assets, tangible or which otherwise relates to, its Intellectual Propertyintangible;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships Any written agreement concerning confidentiality or guaranteesnoncompetition;
(d) any Contracts Any written agreement between Interactive, on or involving the one hand, Purchased Company and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise)Affiliates;
(e) Any written agreement with any deferred compensation agreementsof the directors, bonusofficers, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive the Purchased Company in the nature of a collective bargaining agreement, employment agreement, or the Subsidiaryseverance agreement;
(f) any Contracts with any labor union affecting employees of Interactive or the SubsidiaryAny written agreement to which a government department is a party;
(g) all partnership, joint venture, shareholders' Any written agreement providing for indemnification for or similar Contracts with against any PersonLiabilities of any third party;
(h) all Contracts that limit or contain restrictions on Any written agreement in which the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Purchased Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial conditionanticipates taking a Material loss;
(i) any Contracts Any written agreement under which restrict Interactive the consequences of a default or termination could have a Material adverse effect on the Subsidiary from freely engaging in business assets, Liabilities, Business, financial condition, operations, results of operations, or competing anywherefuture prospects of the Purchased Company taken as a whole; and
(j) any Contracts which otherwise are material Any other written agreement not entered into in the Ordinary Course of Business. The Shareholders have delivered to the Condition Buyer, or showed to Buyer with an offer to provide to Buyer, a correct and complete copy of Interactive each written agreement listed above, or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All has set forth a description of the Scheduled Contracts are written agreement in the Disclosure Schedule. To the Knowledge of the Shareholders and the Purchased Company, with respect to each written agreement so listed: (1) the written agreement is legal, valid, binding, enforceable, and in full force and effect in accordance with its terms and constitute conditions, (2) other than as set forth on the Disclosure Schedule, the written agreement will continue to be legal, valid valid, binding, and binding obligations of Interactive enforceable and in full force and effect on identical terms following the Subsidiary andClosing, to the best knowledge of Interactive (3) no party is in breach or default, and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist event has occurred which would give rise to an Action constitute a breach or default or permit termination, modification, or acceleration, under the written agreement, and (as defined in Section 2.134) against or by Interactive or no party has repudiated any provision of the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentswritten arrangement.
Appears in 1 contract
Sources: Share and Asset Purchase Agreement (MMH Holdings Inc)
Contracts. Interactive (a) Section 3.11 of the Company Disclosure Schedule lists each of the following written Contracts (it being understood that Section 3.11 of the Company Disclosure Schedule does not list any Contract with subscribers (individual residential subscribers, multiple dwelling units and commercial establishments):
(i) any material Contract relating to the use of any public utility facilities, including pole line, joint pole and master contracts for pole attachment rights and the Subsidiary are not parties touse of conduits;
(ii) any Contract relating to the use of any microwave or satellite transmission facilities;
(iii) any indefeasible right of use or other fiber or cable lease or use agreement that is material to the operation of the Business;
(iv) any Contract for the purchase or sale of real property or any option to purchase or sell real property, nor is Interactive, in either case providing for aggregate payments by the Company or the Subsidiaries in an amount exceeding $50,000.00;
(v) any Contract requiring payments by the Company or any Subsidiary, or pursuant to which third parties are required to pay to the Company or any Subsidiary, individually or in the aggregate with respect to such Contract, in excess of $200,000.00 annually, other than those that are terminable by the Company or any Subsidiary on ninety (90) days’ notice or less without obligation to make any material payment;
(vi) any employment agreement with any Employee that is not terminable at will or that contains any severance or termination pay or other compensatory obligations other than accrued payment obligations for services rendered prior to the termination date;
(vii) the LLC Agreement;
(viii) any Contract pursuant to which the Company or any of the Subsidiaries have incurred or will incur Closing Transaction Expenses, other than engagement letters with the entities described in Section 3.24;
(ix) any Contract that contains any (A) “most favored nation” or similar provision in favor of a Person other than the Company or any of the Subsidiaries, (B) provision expressly requiring the Company or any of the Subsidiaries to purchase goods or services exclusively from another Person, (C) express restriction on the ability of the Company or any of its Affiliates (whether before or after the Closing) to compete in any business or any geographic area or (D) provision that applies or purports to apply to any Affiliate of the Company (other than the Subsidiaries) or any of their assets or properties bound by, whether before or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:after Closing;
(ax) any Contracts Contract that, if Section 3.4 did not contain the qualification to clause (ii) thereof that is set forth therein, would cause the representation in Section 3.4 to be untrue;
(xi) any Contract pursuant to which Interactive the Company or any of the Subsidiary, Subsidiaries has incurred or another party thereto, become liable for any Funded Indebtedness that is obligated to pay in excess of fifty thousand dollars ($50,000)currently outstanding;
(bxii) any Contracts Contract pursuant to which Interactive the Company or any Subsidiary has agreed, as of the Subsidiary acquired date of this Agreement, to acquire or dispose of (A) any System, headend, subscriber, Person, business or all or substantially all the right assets of any Person or business or (B) any other assets other than, in the case of this clause (B) only, in the Ordinary Course;
(xiii) any partnership, joint venture or similar Contract relating to use any Intellectual Property (as defined in Section 2.9 below) Person that is not wholly owned by the Company or information any of the Subsidiaries that is material to or necessary in the business operation of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual PropertyBusiness;
(cxiv) any Contracts (other than advances of expenses to employees in Contract between the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships Company or guarantees;
(d) any Contracts between InteractiveSubsidiary, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoingtheir Affiliates, on the other; ("Affiliate" of a person means a person other hand that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, material to the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, operation of the power Business. The Contracts required to direct or cause be set forth in the direction of foregoing clauses (i) through (xiv) are referred to herein as the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);“Material Contracts.”
(eb) any deferred compensation agreementsEach Material Contract, bonus, pension, profit sharing, stock option Lease and incentive plans or arrangements, hospitalization, medical Demising Lease is valid and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions binding on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; applicable Subsidiary, as the case may be, and
(j) any Contracts which otherwise are material , to the Condition of Interactive or Company’s Knowledge, on the Subsidiary. True other parties thereto, and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are is in full force and effect and constitute legalis enforceable against the Company or the applicable Subsidiary, valid as the case may be, except insofar as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws now or hereafter in effect affecting creditors’ rights generally, or by principles governing the availability of equitable remedies and binding obligations other than Material Contracts described in clauses (vii), (x), (xi) and (xiv), to the Company’s Knowledge, shall continue in full force and effect following the Closing unless terminated by, or at the direction of, Acquiror or the Surviving Entity. Neither the Company nor the Subsidiaries are in breach of Interactive and the Subsidiary or default under any Material Contract, Lease or Demising Lease, and, to the best knowledge Company’s Knowledge, no event or circumstance has occurred which, with notice, lapse of Interactive time or both, would constitute a default or breach by the Company or any of the Subsidiaries under any Material Contract, Lease or Demising Lease, except for any such breaches or defaults that, individually or in the aggregate, have not had and the Subsidiary, the other parties thereto; would not reasonably be expected to have a Material Adverse Effect. Prior to the best date of Interactive's and this Agreement, neither the Subsidiary's knowledge, no circumstances exist which would give rise Company nor any of the Subsidiaries has received any written notice of any such default or breach (other than notices of matters that have been resolved prior to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract date hereof without material Liability to the Company or any of the Subsidiaries), and to the Company’s Knowledge, there does not exist any default thereunder; or breach, and no event or circumstance has occurred which, with notice, lapse of time or both, would constitute a default or breach, under any Material Contract, Lease or Demising Lease by any party thereto other than the validityCompany or any of the Subsidiaries except for any such breaches or defaults that, effectiveness individually or in the aggregate, have not had and continuation would not reasonably be expected to have a Material Adverse Effect. True and complete copies of all Scheduled Material Contracts will not be adversely affected by as in effect as of the transactions contemplated by date of this Agreement or require any third party consentshave been delivered to Acquiror.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Cablevision Systems Corp /Ny)
Contracts. Interactive and Section 4(n) of the Subsidiary are not parties to, nor is Interactive, Disclosure Schedule lists the Subsidiary, or any of their assets or properties bound by, or subject to, any following contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, and other written arrangements or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of Target and its Subsidiaries is a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;party:
(i) any Contracts which restrict Interactive written arrangement (or group of related written arrangements) for the Subsidiary lease of personal property from freely engaging or to third parties providing for lease payments in business excess of $100,000 per annum or competing anywhere; andnot entered into in the Ordinary Course of Business;
(jii) any Contracts written arrangement (or group of related written arrangements) for the purchase or sale of raw materials, commodities, supplies, products, or other personal property or for the furnishing or receipt of services which otherwise are material either calls for performance over a period of more than one year or involves more than the sum of $100,000 or not entered into in the Ordinary Course of Business;
(iii) any written arrangement concerning a partnership or joint venture;
(iv) any written arrangement (or group of related written arrangements) under which it has created, incurred, assumed, or guaranteed (or may create, incur, assume, or guarantee) indebtedness (including capitalized lease obligations) involving more than $100,000 or not entered into in the Ordinary Course of Business or under which it has imposed (or may impose) a Security Interest on any of its assets, tangible or intangible;
(v) any written arrangement concerning confidentiality or noncompetition;
(vi) any written arrangement involving the Seller and its Affiliates;
(vii) any written arrangement with any of its directors, officers, and employees in the nature of a collective bargaining agreement, employment agreement, or severance agreement; or
(viii) any other written arrangement (or group of related written arrangements) either involving more than $100,000 or not entered into in the Ordinary Course of Business. The Seller has delivered to the Condition Buyer a correct and complete copy of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All each written arrangement listed in Section 4(n) of the Scheduled Contracts are Disclosure Schedule (as amended to date). With respect to each written arrangement so listed: (A) the written arrangement is legal, valid, binding, enforceable, and in full force and effect; (B) the written arrangement will continue to be legal, valid, binding, and enforceable and in full force and effect on identical terms following the Closing; (C) no party is in breach or default, and no event has occurred which with notice or lapse of time would constitute legala breach or default or permit termination, valid modification, or acceleration, under the written arrangement; and binding obligations (D) no party has repudiated any provision of Interactive the written arrangement. None of the Target and its Subsidiaries is a party to any verbal contract, agreement, or other arrangement which, if reduced to written form, would be required to be listed in Section 4(n) of the Subsidiary andDisclosure Schedule under the terms of this Section 4(n). No unfilled customer order or commitment obligating any of the Target and its Subsidiaries to process, manufacture, or deliver products or perform services will result in a loss to any of the best knowledge Target and its Subsidiaries upon completion of Interactive performance. No purchase order or commitment of any of the Target and its Subsidiaries is outside the SubsidiaryOrdinary Course of Business, nor are prices provided therein in excess of current market prices for the other parties thereto; products or services to be provided thereunder. Except as occurs in the best Ordinary Course of Interactive's and the Subsidiary's knowledgeBusiness, no circumstances exist which would give rise supplier of any of the Target and its Subsidiaries has indicated within the past year that it will stop, or decrease the rate of, supplying materials, products, or services to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsthem.
Appears in 1 contract
Contracts. Interactive and As of the Subsidiary are not parties toOffer Date, neither Seller nor is Interactive, the Subsidiary, or any of their assets the Transferred Subsidiaries is a party to or properties bound by, nor has Seller or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") Transferred Subsidiary made any commitment with respect to any of the following types, except for those (with respect to the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretoBusiness:
(a) any Contracts pursuant Contract relating to which Interactive the pending acquisition or the Subsidiarydisposition of any business or product line (whether by merger, sale of stock, sale of assets or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000otherwise);
(b) any Contracts pursuant to Contract which Interactive creates any Encumbrance on any Transferred Asset or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual PropertyTransferred IPR;
(c) any Contracts Contract concerning the establishment or operation by the Business of a partnership, joint venture or limited liability company;
(d) any Contract relating to the Business concerning or containing restrictions on business activities, including noncompetition or nonsolicitation (other than advances of expenses to employees noncompetition or nonsolicitation agreements entered into with Employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred employment Contract (other than "at will" employment Contracts and Contracts arising as a matter of applicable Law) with any Transferred Employee or consulting Contract with any Person (other than consulting Contracts terminable by Seller or its Subsidiaries without cause or penalty and with no more than 30 days advance notice) providing for fixed annual cash compensation agreementsin excess of $50,000 or any employee retention, bonus, pension, profit sharing, stock option and incentive plans stay or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiarybonus Contracts;
(f) any Contracts collective bargaining, workers' council or similar Contract relating to the Business entered into with any labor union affecting employees trade union, workers' council or other group of Interactive or the Subsidiaryemployee representatives;
(g) all partnership, joint venture, shareholders' any Contract (excluding Assigned Leases and Subsidiary Leases) under which the consequences of a default or similar Contracts with any Person;termination would reasonably be expected to have a Seller Material Adverse Effect; or
(h) all Contracts that limit any Contract (excluding Assigned Leases and Subsidiary Leases) which contains any provisions requiring Seller or contain restrictions on the ability of Interactive or the any Transferred Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire indemnify any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
party (other than (i) any indemnities against breach of the obligations contained in Contracts which restrict Interactive were entered into in the ordinary course of business, including ordinary course, generic director, officer and employee indemnification agreements not relating to specific or particular subjects and (ii) indemnities against IPR infringement contained in non-exclusive licenses entered into in the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsordinary course).
Appears in 1 contract
Sources: Purchase Agreement
Contracts. Interactive (a) Each Contract to which Seller is a party is a valid and binding agreement, and is in full force and effect, and Seller nor, to the Subsidiary are best knowledge of Seller or the Members, any other party thereto is in breach or default (whether with or without the passage of time or the giving of notice or both) under the terms of any such Contract. Seller has not parties toassigned, nor is Interactive, the Subsidiarydelegated, or otherwise transferred any of their assets its rights or properties bound byobligations with respect to any Contracts, or subject to, granted any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral power of attorney with respect thereto. Seller has given a true and correct fully executed copy of each material Contract to Parent.
(collectively, "Contracts"b) Schedule 2.1(e) lists each material Contract (other than the Charter Documents) of the following typesSeller, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II heretoincluding, but not limited to:
(ai) any Contracts Contract pursuant to which Interactive Seller is required to pay, has paid or the Subsidiary, is entitled to receive or another party thereto, is obligated to pay has received an amount in excess of fifty thousand dollars $10,000 during the current fiscal year or any one of the two preceding fiscal years (other than purchase orders for Inventory entered into in the ordinary course of business (excluding however any such purchase orders which are open for purchases in excess of $50,000);
(bii) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertyall employment contracts and sales representatives contracts;
(ciii) all material sales, agency, factoring, commission and distribution contracts to which Seller is a party;
(iv) all joint venture, strategic alliance, limited liability company and partnership agreements to which Seller is a party;
(v) all significant documents relating to any Contracts acquisitions or dispositions of assets by Seller (other than advances of expenses to employees dispositions of Inventory in the ordinary course of business);
(vi) involving loans, loan all material licensing agreements, debt securitiesincluding agreements licensing Intellectual Property Rights, mortgagesother than “shrink wrap” licenses;
(vii) all secrecy, deeds confidentiality and nondisclosure agreements restricting the conduct of trustSeller;
(viii) all Contracts relating to patents, security trademarks, service marks, trade names, brands, copyrights, trade secrets and other Intellectual Property Rights of Seller;
(ix) all guarantees, with the terms and conditions and privacy policies and other provisions of the Websites indemnification arrangements and other hold harmless arrangements made or provided by Seller;
(x) all website hosting contracts or agreements;
(xi) all Contracts or agreements with or pertaining to Seller to which any Member or any Affiliate of any Member is a party;
(xii) all agreements relating to real property, suretyships including any real property lease, sublease, or guaranteesspace sharing, license or occupancy agreement, whether Seller is granted or granting rights thereunder to occupy or use any premises;
(xiii) all material agreements relating to Tangible Assets; and
(xiv) all agreements relating to outstanding Indebtedness.
(c) Seller is not subject to any Contract which prohibits, limits or restricts any use by it of any information regarding its customers, including limiting the solicitation of or other communication by it with its customers or providing any information regarding its customers to any third party. Seller has acted in compliance in all material respects with all terms and conditions and privacy policies published on each Website (collectively, “Website Rules”), including with respect to its use of information regarding customers. Except as set forth in Schedule 3.20(c), the disclosure to Buyer and Parent, and the use by them, of customer identities and information regarding them and communications with them by Buyer and Parent, including offers to download Parent toolbars, will not violate any Contract or any Website Rules.
(d) any Contracts between InteractiveSeller is in compliance with all covenants, on the one handincluding all financial covenants, and any of its officersin all notes, directorsindentures, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans bonds and other employee compensation policies and instruments or agreements affecting employees of Interactive or the Subsidiary;
(f) evidencing any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsIndebtedness.
Appears in 1 contract
Contracts. Interactive and the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts"a) Set forth in Section 3.13(a) of the Company Disclosure Schedule is a list of each of the following typesContracts to which the Company, except for those (the "Scheduled Contracts") listed in Part 2.8 any of Schedule II heretoits Subsidiaries or any Joint Venture is a party:
(ai) any Contracts Contract that would be required to be filed as an exhibit to a Registration Statement on Form S-1 under the Securities Act or an Annual Report on Form 10-K under the Exchange Act if such registration statement or report was filed by the Company with the SEC on the date hereof;
(ii) any Contract that purports to limit, curtail or restrict the ability of the Company, any of its existing or future Subsidiaries or Affiliates or any Joint Venture to compete in any geographic area or line of business or restrict the Persons to whom the Company, any of its existing or future Subsidiaries or Affiliates or any Joint Venture may sell products or deliver services;
(iii) partnership or joint venture agreement;
(iv) Contract for the acquisition, sale or lease of material properties or assets (by merger, purchase or sale of stock or assets or otherwise) (A) entered into since August 1, 2003 or (B) currently in effect, which requires ongoing performance or imposes ongoing obligations;
(v) Contract with any (A) Governmental Authority or (B) director or officer of the Company, any of its Subsidiaries or Affiliates or any Joint Venture;
(vi) loan or credit agreement, mortgage, indenture, note or other Contract or instrument evidencing indebtedness for borrowed money by the Company, any of its Subsidiaries or any Joint Venture or any Contract or instrument pursuant to which Interactive indebtedness for borrowed money may be incurred or is guaranteed by the SubsidiaryCompany, any of its Subsidiaries or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)any Joint Venture;
(bvii) any Contracts pursuant to which Interactive financial derivatives master agreement or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiaryconfirmation, or pursuant to which Interactive futures account opening agreements and/or brokerage statements, evidencing financial hedging or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertysimilar trading activities;
(cviii) voting agreement or registration rights agreement;
(ix) mortgage, pledge, security agreement, deed of trust or other Contract granting a Lien on any Contracts material property or assets of the Company, any of its Subsidiaries or any Joint Venture;
(x) customer, client or supply Contract (other than advances of expenses to employees a purchase order received in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds that involves consideration in fiscal year 2006 in excess of trust, security agreements, suretyships $2,000,000 or guaranteesthat is reasonably likely to involve consideration in fiscal year 2006 or fiscal year 2007 in excess of $2,000,000;
(dxi) any Contract (other than customer, client or supply Contracts between Interactive, on or purchase orders received in the one hand, and any ordinary course of its officers, directors, employees business) that involve consideration (whether or any Persons that beneficially own not measured in excess cash) of 10.0% greater than $2,000,000;
(xii) collective bargaining agreement;
(xiii) agreement pursuant to which it has agreed to a “standstill” or similar obligation;
(xiv) to the extent material to the business or financial condition of the outstanding equity interest Company and its Subsidiaries, taken as a whole, (each A) lease or rental Contract, (B) product design or development Contract, (C) consulting Contract, (D) indemnification Contract, (E) license or royalty Contract, (F) merchandising, sales representative or distribution Contract or (G) Contract granting a "Principal Owner"right of first refusal or first negotiation; and
(xv) of Interactive, commitment or any Affiliate or relative, or Affiliate of a relative, of agreement to enter into any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, Contracts and "control" means the possession, directly or indirectly or as trustee or executor, other documents required to be listed on Section 3.13(a) of the power Company Disclosure Schedule, together with any and all other Contracts of such type entered into in accordance with Section 5.2(a), each a “Material Contract”). The Company has heretofore made available to direct Parent correct and complete copies of each Material Contract or cause summaries in the direction case of customer Material Contracts in existence as of the management policies of a persondate hereof, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);together with any and all amendments and supplements thereto and material “side letters” and similar documentation relating thereto.
(eb) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees Except as separately identified in Section 3.13(b) of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
Disclosure Schedule, (i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere; and
(j) any Contracts which otherwise are material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All each of the Scheduled Material Contracts are is valid, binding and in full force and effect and constitute legalis enforceable in accordance with its terms by the Company, valid and binding obligations of Interactive its Subsidiaries and the Subsidiary andJoint Venture party thereto, subject to the best knowledge Bankruptcy and Equity Exception; (ii) no approval, consent or waiver of Interactive any Person is needed in order that any Material Contract continue in full force and effect following the Subsidiary, the other parties thereto; to the best consummation of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated hereby; (iii) none of the Company, any of its Subsidiaries or any Joint Venture is in default under any Material Contract, nor does any condition exist that, with notice or lapse of time or both, would constitute a default thereunder by this Agreement the Company and its Subsidiaries and the Joint Ventures party thereto, except for such defaults as, individually or require in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect; (iv) to the Knowledge of the Company, no other party to any Material Contract is in default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute a default by any such other party thereunder, except for such defaults as, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect; and (v) none of the Company, any of its Subsidiaries or any Joint Venture has received any notice of termination or cancellation under any Material Contract, received any notice of breach or default in any material respect under any Material Contract which breach has not been cured, or granted to any third party consentsany rights, adverse or otherwise, that would constitute a breach of any Material Contract.
Appears in 1 contract
Contracts. Interactive a. To the knowledge and belief of Stereophile after due investigation and inquiry, SCHEDULE 6.6 hereto contains a true and complete listing of the Subsidiary are not parties to, nor is Interactivefollowing as they relate to Stereophile or the Publication Assets (collectively, the Subsidiary"Contracts"):
(1) a copy of Stereophile's current standard form of advertising agreement and any prior standard form of advertising agreement used in connection with the Publications and still in effect for any account;
(2) any advertising contract not on a standard form disclosed pursuant to Section 6.6(a)(1) or not at a rate disclosed on the Stereophile's current rate card disclosed pursuant to Section 6.6(a)(3), other than contracts which individually do not, and would not if entered into at the current card rate require payments totaling more than $1,500; and any agreement, written or oral, to exchange or provide advertising in the Publications for consideration other than cash; CONTRIBUTION AND SHAREHOLDERS AGREEMENT VALLEY RECORD DISTRIBUTORS, INC -- STEREOPHILE, INC.
(3) the current advertising rate card for the Publications and all advertising rate cards used in connection with the Publications since January 1, 1995;
(4) except for advertising contracts, all contracts, agreements or other commitments to which Stereophile is a party or by which it or its property is bound which involves the Business or which affect or may materially affect in the future any of the Publication Assets;
(5) all leases, options to purchase, or agreements to lease or purchase any property which is part of their assets the Publication Assets;
(6) all property which is part of the Publication Assets [other than property held under a lease disclosed in SCHEDULE 6.6 pursuant to Section 6.6(a)(5)] used by Stereophile but not owned by Stereophile;
(7) all permits (including second class mailing permits), licenses, franchises, authorizations, approvals and other certificates of authority held by Stereophile to the extent the same is required or properties bound byuseful for the conduct of the Business;
(8) all patents, registered or unregistered trademarks, trade names, registered copyrights and internet domain names, and all pending applications which are part of the Publication Assets or used in the Business;
(9) all written employment, consulting or independent contractor agreements and a summary of all such agreements that are oral (other than oral agreements containing no terms other than employment at will) with persons involved with publishing the Publications on behalf of Stereophile;
(10) any other agreement or instrument to which Stereophile is a party and which is material to the continued publication of the Publications, or subject with respect to which a default thereunder would materially or adversely affect the business of publishing the Publications, including, but not limited to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements contract for printing or understandings, written or oral (collectively, "Contracts") of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 of Schedule II hereto:
(a) any Contracts pursuant to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhereproduction services; and
(j11) a list of all deferred subscription liabilities to each of the Publications, which may be appended to SCHEDULE 6.6 within 15 days after Closing when all such liabilities are determined.
b. Except as may be disclosed in SCHEDULE 6.6, Stereophile is not in default under any of the Contracts which otherwise are is material to the Condition of Interactive or the Subsidiary. True and correct copies of all Scheduled Contracts have been made available to ▇▇▇▇▇ and Advercomm. All of the Scheduled Contracts are in full force and effect and constitute legal, valid and binding obligations of Interactive and the Subsidiary and, to the best knowledge of Interactive and the Subsidiary, the other parties thereto; to the best of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement or require any third party consentsBusiness.
Appears in 1 contract
Sources: Contribution and Shareholders Agreement (Valley Media Inc)
Contracts. Interactive and (a) Schedule 3.16 of the Subsidiary are not parties to, nor is Interactive, Parent Disclosure Schedule lists the Subsidiary, following agreements (written or oral) to which the Parent or any of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leases, licenses, commitments, arrangements or understandings, written or oral (collectively, "Contracts") the Parent Subsidiaries is a party as of the following types, except for those (the "Scheduled Contracts") listed in Part 2.8 date of Schedule II hereto:
(a) any Contracts pursuant to this Agreement which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars (do not exceed $50,000);
(b) any Contracts pursuant to which Interactive or the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 below) or information that is material to or necessary 25,000 in the business of Interactive or the Subsidiary, or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Property;
(c) any Contracts (other than advances of expenses to employees in the ordinary course of business) involving loans, loan agreements, debt securities, mortgages, deeds of trust, security agreements, suretyships or guarantees;
(d) any Contracts between Interactive, on the one hand, and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of the outstanding equity interest (each a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwise);
(e) any deferred compensation agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(f) any Contracts with any labor union affecting employees of Interactive or the Subsidiary;
(g) all partnership, joint venture, shareholders' or similar Contracts with any Person;
(h) all Contracts that limit or contain restrictions on the ability of Interactive or the Subsidiary to declare or pay dividends, to make distributions in respect of or to issue or purchase, redeem or otherwise acquire any of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;aggregate:
(i) any Contracts 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;
(iii) any agreement establishing a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which restrict Interactive it 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 Security Interest on any of its assets, tangible or intangible;
(v) any agreement that purports to limit in any material respect the Subsidiary from freely engaging right of the Parent or any of the Parent Subsidiaries to engage in business any line of business, or competing anywhereto compete with any person or operate in any geographical location;
(vi) any employment or consulting agreement;
(vii) any agreement involving any current or former officer, director or stockholder of the Parent or any Affiliate thereof;
(viii) any agreement under which the consequences of a default or termination would reasonably be expected to have a Parent Material Adverse Effect;
(ix) any agreement which contains any provisions requiring the Parent or any of the Parent Subsidiaries to indemnify any other party thereto (excluding indemnities contained in agreements for the purchase, sale or license of products entered into in the Ordinary Course of Business);
(x) any other agreement (or group of related agreements) either involving more than $25,000 or not entered into in the Ordinary Course of Business; and
(jxi) any Contracts which otherwise are material agreement, other than as contemplated by this Agreement and the Transfer, relating to the Condition sales of Interactive securities of the Parent or any of the Subsidiary. True and correct copies of all Scheduled Contracts have been Parent Subsidiaries to which the Parent or such Parent Subsidiary is a party.
(b) The Parent has delivered or made available to ▇▇▇▇▇ the Company a complete and Advercomm. All accurate copy of each agreement listed in Schedule 3.16 of the Scheduled Contracts are Parent Disclosure Schedule. With respect to each agreement (i) the agreement is legal, valid, binding and enforceable and in full force and effect, except as such enforceability may be limited under applicable bankruptcy, insolvency and similar laws, rules or regulations affecting creditors’ rights and remedies generally and to general principles of equity whether applied in a court of law or a court of equity; (ii) the agreement will not, as a result of the execution and delivery by the Parent of this Agreement or any of the other Transaction Documents or the consummation by the Parent of the transactions contemplated hereby or thereby, cease to be a legal, valid, binding and enforceable obligation of the Parent, except as such enforceability may be limited under applicable bankruptcy, insolvency and similar laws, rules or regulations affecting creditors’ rights and remedies generally and to general principles of equity, whether applied in a court of law or a court of equity, or to be in full force and effect in accordance with the terms thereof as in effect immediately prior to the Closing; and constitute legal, valid and binding obligations (iii) neither the Parent nor any of Interactive and the Subsidiary andParent Subsidiaries nor, to the best knowledge of Interactive the Parent, any other party, is in breach or violation of, or default under, any such agreement, and the Subsidiaryno event has occurred, the other parties thereto; is pending or, to the best knowledge of Interactive's and the Subsidiary's knowledgeParent, no circumstances exist which is threatened, which, after the giving of notice, with lapse of time or otherwise, would give rise to an Action (as defined in Section 2.13) against constitute a breach or default by Interactive or the Subsidiary in connection with any Scheduled Contract Parent or any default thereunder; of the Parent Subsidiaries or, to the knowledge of the Parent, any other party under such contract. The Parent has delivered or made available to the Company a complete and accurate copy each agreement of the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by the transactions contemplated by this Agreement Parent or require any third party consentsParent Subsidiary described in or filed as an exhibit to a Parent Report.
Appears in 1 contract
Contracts. Interactive (a) Schedule 3.1.11
(a) contains a complete and correct list of all of the Subsidiary are not parties to, nor is Interactive, the Subsidiary, or any following types of their assets or properties bound by, or subject to, any contracts, agreements, notes, instruments, franchises, leasescontracts, licenses, commitments, arrangements or understandingsinstruments, understandings and arrangements, whether written or oral oral, in each case as amended, supplemented, waived or otherwise modified (collectivelyeach, a "ContractsContract") by which the Business or any of the following types, except for those Assets are bound or to which the Seller is a party or by which it is bound in connection with the Business or the Assets (the "Scheduled Material Contracts") listed in Part 2.8 of Schedule II hereto:):
(ai) any Contracts pursuant Contracts, franchises, insurance policies and Governmental Approvals, in each case concerning or relating to which Interactive or the Subsidiary, or another party thereto, is obligated to pay in excess of fifty thousand dollars ($50,000)real property;
(bii) any employment, severance, change of control, consulting, agency, collective bargaining and other similar Contracts pursuant to which Interactive or (including, without limitation, loans from the Subsidiary acquired the right to use any Intellectual Property (as defined in Section 2.9 belowSeller) or information that is material relating to or necessary in for the business benefit of Interactive any current or the Subsidiaryformer shareholder, officer, other employee, director, sales representative, distributor, dealer, agent, independent contractor or pursuant to which Interactive or the Subsidiary has granted to others the right to use, or which otherwise relates to, its Intellectual Propertyconsultant;
(ciii) asset purchase agreements or other acquisition or divestiture Contracts, including, but not limited to, any Contracts relating to the sale, lease or disposal of any Assets (other than advances sales of expenses to employees inventory in the ordinary course of businessbusiness consistent with past practice) or involving loans, continuing indemnity or other obligations;
(iv) Contracts involving the expenditure by any party of more than $25,000 or requiring performance by any party thereto for more than six months;
(A) loan agreements, debt securitiesindentures, mortgages, security agreements, pledge agreements, deeds of trust, security bonds, notes, guarantees, keep well agreements and other Contracts, agreements, suretyships instruments and arrangements relating to the borrowing of money, overdraft arrangements, or guarantees;
obtaining of or extension of credit or the guarantee of liabilities, obligations and commitments and (dB) any Contracts between Interactiveletters of credit and surety, on indemnity, performance and similar bonds (other than in each of the one handclauses (A) and (B), and any of its officers, directors, employees or any Persons that beneficially own in excess of 10.0% of such items with respect to which the outstanding equity interest (each Seller is not an obligor and does not have a "Principal Owner") of Interactive, or any Affiliate or relative, or Affiliate of a relative, of any of the foregoing, on the other; ("Affiliate" of a person means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the first mentioned person, and "control" means the possession, directly or indirectly or as trustee or executor, of the power to direct or cause the direction of the management policies of a person, whether through the ownership of stock, as trustee or executor, by contract or credit arrangement or otherwisereimbursement obligation);
(evi) any deferred compensation sales agency, manufacturer's representative, marketing or distributorship agreements, bonus, pension, profit sharing, stock option and incentive plans or arrangements, hospitalization, medical and insurance plans, agreements and policies, retirement and severance plans and other employee compensation policies and agreements affecting employees of Interactive or the Subsidiary;
(fvii) any Contracts with any labor union affecting employees of Interactive capitalized lease or the Subsidiarysale-leaseback or conditional sale agreements;
(gviii) all partnership, joint venture, shareholders' Contracts relating to membership in any buying or similar Contracts with any Personselling group or cooperative arrangements;
(hix) all obligations evidenced by orders and other Contracts that limit for the purchase or contain restrictions on sale of inventories, materials, supplies, products or services (including, without limitation, buying group or cooperative arrangements, fuel supply and delivery fleet maintenance Contracts), each of which involves the ability of Interactive aggregate annual payment or the Subsidiary to declare or pay dividends, to make distributions in respect of potential payment by or to issue or purchase, redeem or otherwise acquire any the Seller in excess of its capital stock or require the Company or any Subsidiary to maintain specified financial ratios or levels of net worth or other indicia of financial condition;
(i) any Contracts which restrict Interactive or the Subsidiary from freely engaging in business or competing anywhere$25,000; and
(jx) any other Contracts which otherwise that are material to the Condition of Interactive or Business.
(b) The Seller has delivered to the Subsidiary. True Buyer complete and correct copies of all Scheduled written Material Contracts have been made available and accurate descriptions of all material terms of all oral Material Contracts, set forth or required to ▇▇▇▇▇ and Advercomm. be set forth in Schedule 3.1.11(a).
(c) All of the Scheduled Material Contracts are in full force and effect and enforceable against each party thereto and no event of default or event or condition exists that, after notice or lapse of time or both, would constitute legala violation, valid and binding obligations breach or event of Interactive and default thereunder on the Subsidiary andpart of the Seller or, to the best knowledge of Interactive the Seller or Parent, any other party thereto. Except as set forth in Schedule 3.1.11(c), no Consent of any third party is required under any Contract as a result of or in connection with, and the Subsidiary, the other parties thereto; to the best enforceability of Interactive's and the Subsidiary's knowledge, no circumstances exist which would give rise to an Action (as defined in Section 2.13) against or by Interactive or the Subsidiary in connection with any Scheduled Contract or any default thereunder; and the validity, effectiveness and continuation of all Scheduled Contracts will not be adversely affected by in any manner by, the execution, delivery and performance of this Agreement, Transfer Documents, or the consummation of the transactions contemplated hereby or thereby.
(d) The Seller is not restricted by this Agreement any Contract with any other Person from carrying on the Business anywhere in the world. The Seller does not employ any employee in a manner that would violate any Contract to which such employee is a party or require any third party consentsis bound.
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