Listed Contracts. Section 3.15 of the Disclosure Schedule sets forth a list of all the following Contracts (the “Listed Contracts”) to which any Company Member is a party or by which it is (or its assets are) bound or to which any Company Member is subject: (a) any material agreement that requires payment by any party thereto of more than ***** annually; (b) all partnership, joint venture, tax sharing or similar agreements providing for a sharing of profits, losses, costs or liabilities between a Company Member and a third party; (c) any agreement that cannot be terminated by a Company Member upon ninety (90) days’ notice or less without the payment of any material penalty or material termination fee; (d) any collective bargaining agreement or other Contract with any labor union or labor organization; (e) any Contract involving the settlement of any (i) material Action, (ii) any Action with a payment obligation in excess of ***** entered into during the past five (5) years, or (iii) any Action for which there are continuing obligations, excepting confidentiality; (f) any Contract with a Related Party (other than ordinary course employment arrangements); (g) any Contract under which any Company Member has created, incurred, assumed or guaranteed any Indebtedness or under which any Company Member has granted a Lien on any of its assets, tangible or intangible; (h) any guarantee of the obligations of customers, suppliers, officers, directors, employees, Affiliates or others or any Contract the primary purpose of which is an indemnification obligation on the part of any Company Member; (i) any Contract under which any Company Member has advanced or loaned any amount to any of its directors, officers and employees; (j) any “standstill” or similar Contract that restricts any Company Member’s right to acquire any security or business; (k) any Contract with a Governmental Authority, excluding Contracts for subscription services that are on substantially the same terms as Contracts with non-Governmental Authority customers; (l) any Contract for the employment, or engagement directly as an independent contractor, of any individual, on a full-time or part-time basis, that (i) provides for annual compensation in excess of ***** or (ii) cannot be terminated at will without payment of severance or other penalty; (m) any Contract between any Company Member and any employee, or any individual engaged directly as an independent contractor, pursuant to which: (i) benefits would vest, amounts would become payable or the terms of which would otherwise be altered by virtue of the consummation of the transactions contemplated by this Agreement (whether alone or upon any additional or subsequent Occurrence); or (ii) any Company Member is or may become obligated to make any severance, termination, retention, gross-up or similar payment; (n) any Contract relating to the merger, consolidation, liquidation, dissolution, reorganization, disposition of a business or any similar transaction involving or with respect to any Company Member; (o) any Contract with a staffing agency, employee leasing company or professional employer organization (PEO) pursuant to which such entity provides services to any Company Member; (p) all Contracts that limit or restrict the freedom of any Company Member to (A) conduct or compete in any line of business or with any Person or in any area, (B) solicit any customers, suppliers, employees or contractors of any other Person, or (C) sell to or purchase from any other Person; (q) all Contracts for the purchase, sale, license or lease by any Company Member of any material assets (other than ordinary course purchase and sale orders and the Real Property Leases); (r) any currency or interest rate swap, collar, hedge, offset, counter trade or barter Contract; and (s) all outstanding powers-of-attorney granted by any Company Member for any purpose whatsoever. Each of the Listed Contracts is a valid, binding, and enforceable obligation of the applicable Company Member, and, to the Company’s Knowledge, the other parties thereto, in accordance with its terms and conditions, except as such enforceability may be limited by applicable (i) Laws of general application relating to bankruptcy, insolvency and the relief of debtors, and (ii) rules of Law governing specific performance, injunctive relief and other equitable remedies. No Company Member has received any written (or, to the Knowledge of the Company, oral) notice of any intention by any counterparty thereto to (i) terminate, (ii) elect not to renew, or (iii) change the scope of rights under or materially decrease services or supplies to, or usage of the services or products of a Company Member under, any Listed Contract. The Company or a Subsidiary, as applicable, has performed all material obligations required to be performed under each Listed Contract and is not, and to the Company’s Knowledge, no counterparty to any such Listed Contract currently contemplates any termination, election not to renew, or change the scope of rights under or material services or supplies to, or usage of the services or products of the Company or Subsidiary under such Listed Contract. Except as disclosed in Section 3.15 of the Disclosure Schedule, (i) immediately following the Closing, each Listed Contract will be valid, existing and in full force and effect on identical terms, and (ii) no Company Member is, and, to the Company’s Knowledge, no other party to a Listed Contract is, in breach of or default under such Listed Contract (as applicable), and no Occurrence has occurred or exists which, without giving of notice or passage of time or both, would reasonably be expected to give rise to, serve as the basis for, or would constitute, a breach or default under any Listed Contract or result in a termination thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit thereunder. Complete and correct copies of each of the Listed Contracts (or in the case of an oral Listed Contract, a summary of the material terms thereof) have heretofore been made available to Buyer, including all modifications, amendments and supplements thereto and waivers thereunder.
Appears in 1 contract
Sources: Stock Purchase Agreement (Sangoma Technologies Corp)
Listed Contracts. Section 3.15 3.11 of the Disclosure Schedule sets forth a list of all the following agreements (other than any Benefit Plans listed on Section 3.15(a) of the Disclosure Schedule) (such Contracts (listed or required to be listed on Section 3.11 of the Disclosure Schedule together with the IP Agreements, collectively the “Listed Contracts”) to which any the Company Member is a party or by which it is (or its assets are) bound or to which any the Company Member is subject:
(a) any material agreement that requires payment by any party thereto of more than ***** annuallyContract with a Material Customer;
(b) all partnership, joint venture, tax sharing or similar agreements providing for any Contract with a sharing of profits, losses, costs or liabilities between a Company Member and a third partyMaterial Supplier;
(c) any agreement that cannot be terminated by a Company Member upon ninety (90) days’ notice or less without the payment of any material penalty or material termination feeLabor Agreement;
(d) any collective bargaining agreement or other Contract with any labor union or labor organization;
(e) any Contract involving the settlement of any (i) material Action, (ii) Action to which any Action with a payment obligation in excess of ***** entered into during the past five (5) years, unpaid amounts or (iii) any Action for which there are continuing obligations, excepting confidentialityfuture obligations remain;
(fe) any Contract with a Related Party (other than ordinary course employment arrangementsarrangements and equity arrangement in the forms made available to Buyer in respect of the Equity Interests set forth on Section 3.2 of the Disclosure Schedule);
(f) any Contract under which the Company has created, incurred, assumed or guaranteed any Indebtedness;
(g) any Contract under which any the Company Member has created, incurred, assumed or guaranteed any Indebtedness or under which any Company Member has granted a Lien on any of its assets, tangible or intangible;
(h) any guarantee of the obligations of customers, suppliers, officers, directors, employees, Affiliates or others or any Contract the primary purpose of which is an indemnification obligation on the part of any Company Member;
(i) any Contract under which any Company Member has advanced or loaned any amount to any Person, including any current or former director, officer, employee or other individual service provider;
(h) any Contract relating to joint ventures, strategic alliances, partnerships or similar arrangements;
(i) any Contract relating to the acquisition or disposition of its directorsany business, officers and employeesEquity Interests or material assets of any Person or any material real property (whether by merger, sale of stock, sale of assets or otherwise);
(j) any “standstill” or similar Contract that restricts any Company Member’s right to acquire any security or business;
(k) any Contract with a Governmental Authority, excluding Contracts for subscription services that are on substantially the same terms as Contracts with non-Governmental Authority customers;
(l) any Contract for the employment, or engagement directly as an independent contractor, of any individual, on a full-time or part-time basis, that (i) provides for annual compensation limits or purports to limit in excess of ***** or (ii) cannot be terminated at will without payment of severance or other penalty;
(m) any Contract between any Company Member and any employee, or any individual engaged directly as an independent contractor, pursuant to which: (i) benefits would vest, amounts would become payable or the terms of which would otherwise be altered by virtue of the consummation of the transactions contemplated by this Agreement (whether alone or upon any additional or subsequent Occurrence); or (ii) any Company Member is or may become obligated to make any severance, termination, retention, gross-up or similar payment;
(n) any Contract relating to the merger, consolidation, liquidation, dissolution, reorganization, disposition of a business or any similar transaction involving or with respect to any Company Member;
(o) any Contract with a staffing agency, employee leasing company or professional employer organization (PEO) pursuant to which such entity provides services to any Company Member;
(p) all Contracts that limit or restrict the freedom of any the Company Member to (A) conduct or compete in any line of business or with any Person or in any areaarea or (ii) contains any (A) exclusivity rights, (B) solicit rights of first refusal, rights of first offer, rights of first negotiation or similar rights with respect to any customersmaterial asset, suppliersright or property, employees or contractors of any other Person, or (C) sell to minimum purchase requirements or purchase from any other Person(D) “most favored nation” or similar pricing term;
(qk) all Contracts any Contract that includes commitments by the Company to make capital expenditures of more than $100,000 during the period after the date of this Agreement;
(l) any Contract with any Governmental Authority;
(m) any Contract that provides for the purchase, sale, license or lease by any Company Member indemnification of any material assets another Person (other than ordinary course purchase and sale orders and provisions for indemnification of customers on terms substantially the Real Property Leases)same as such indemnification terms in the form customer Contract of the Company made available to Buyer) by the Company;
(rn) any currency Contract pursuant to which the Company (i) is lessee of, or interest rate swapholds or operates any personal property owned by any other Person, collarfor which the annual rental exceeds $100,000, hedgeor (ii) is lessor of or permits any other Person to hold or operate any property, offsetreal or personal, counter trade or barter Contractfor which annual rental exceeds $100,000; and
(so) all outstanding powers-of-attorney granted any Contract for the employment or engagement of any former (to the extent there is any ongoing liability) or current employee or individual service provider on a full time, part time, consulting or other basis (A) providing for annual base salary in excess of $150,000 per annum, (B) containing obligations that would be triggered by the consummation of the transactions contemplated hereby or (C) that is not terminable upon 30 days’ notice or less without any Company Member for any purpose whatsoeverliability to the Company. Each Except as disclosed in Section 3.11 of the Disclosure Schedule, each of the Listed Contracts is a valid, binding, in full force and effect and is legally enforceable obligation of by or against the applicable Company Member, and, to the Company’s Knowledge, the other parties thereto, in accordance with its terms and conditions, except as such enforceability may be limited by applicable (i) Laws of general application relating subject to bankruptcy, insolvency and the relief of debtorsinsolvency, and (ii) rules of Law governing specific performancefraudulent conveyance, injunctive relief reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and general equitable remedies. No Company Member has received any written principles (or, to the Knowledge of the Company, oral) notice of any intention by any counterparty thereto to (i) terminate, (ii) elect not to renew, whether considered in a proceeding in equity or (iii) change the scope of rights under or materially decrease services or supplies to, or usage of the services or products of a Company Member under, any Listed Contractat law). The Company or a Subsidiary, as applicable, has performed all material obligations required to be performed under each Listed Contract and is not, and to the Company’s Knowledge, no counterparty to any such Listed Contract currently contemplates any termination, election not to renew, or change the scope of rights under or material services or supplies to, or usage of the services or products of the Company or Subsidiary under such Listed Contract. Except as disclosed in Section 3.15 of the Disclosure Schedule, (i) immediately following the Closing, each Listed Contract will be valid, existing and in full force and effect on identical terms, and (ii) no Company Member is, and, to the Company’s Knowledge, no other party to a such Listed Contract is, is in material breach of or default under such Listed Contract (as applicable). The Company has not received any written or, the Company’s Knowledge, oral claim or notice of a breach of or default under any Listed Contract and no Occurrence event has occurred or circumstance exists which, without giving of notice individually or passage of time together with other events or bothcircumstances, would reasonably be expected to give rise to, serve as the basis for, or would constitute, result in a breach of or default under any such Listed Contract. The Company has not been provided or received any written or, to the Company’s Knowledge, oral notice of termination, cancellation, non-renewal or modification of, or the intent to terminate, cancel, not renew or modify, any Listed Contract or result in a termination thereof accelerate the rights or would cause or permit the acceleration or other changes of any right or obligation or the loss of any material benefit obligations thereunder. Complete True, correct and correct complete copies of each of the Listed Contracts (or in the case of an oral Listed Contract, a summary of the material terms thereof) have heretofore been made available to Buyer, including all modifications, amendments and supplements thereto and waivers thereunder.
Appears in 1 contract