Contracts and Other Agreements. Section 3.12 of the Disclosure Schedule sets forth a list of the following contracts and other agreements to which the Company is a party or by or to which any of its assets, properties or securities are bound or subject (each, a "Material Contract"): (a) any agreement or series of related agreements requiring aggregate payments by or to the Company of more than $50,000; (b) any agreement with or for the benefit of any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereof; (c) any agreement with any labor union or association representing any employee of the Company; (d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium); (e) any agreement for the sale of any of the assets or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties; (f) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000; (g) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company; (h) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements; (i) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause; (j) any agreement relating to the acquisition by the Company of any operating business or the capital stock of any other Person; (k) any agreement requiring the payment to any Person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business); (l) any agreements, notes or other instruments relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations); (m) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property; (n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger; (o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding; (p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property; (q) any distribution or sales representative agreement or agreement appointing any agent; and (r) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all Material Contracts (and all amendments, waivers or other modifications thereto) have been furnished or made available to the Buyer. Each Material Contract is valid, subsisting, in full force and effect, binding upon the Company and, to the Company's knowledge, the other parties thereto in accordance with their terms, and the Company is not in default under any of them, nor, to the Company's knowledge, is any other party to any Material Contract in default thereunder, nor, to the Company's knowledge, does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (Net Perceptions Inc), Merger Agreement (Net Perceptions Inc)
Contracts and Other Agreements. Section 3.12 of the Disclosure Schedule sets forth a list of the following contracts (a) Contracts and other agreements agreements, whether written or binding oral (“Contracts”) described in this subsection, to which the Company is a party or by or to which it or any of its assets, assets or properties or securities are bound or subject as of the date of this Agreement are referred to herein collectively as “Material Contracts”: (each, a "Material Contract"):
i) All Contracts with Top Customers; (aii) any agreement or series of related agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officerSecurityholder (including, directorto the Knowledge of the Company, holder any of their respective Affiliates) or any security, employee Employee or consultant individual independent contractor of the Company under or to the Knowledge of the Company, with any entity in which any of the foregoing is an officer, director or five percent (5%) or greater Securityholder and pursuant to which the Company or such other party has current or future obligations or liabilities, excluding salary and bonuses of Employees; (iii) contracts and other agreements pursuant to which the Company or the other party thereto has current or future obligations or liabilities in excess of $75,000 in any obligations as of the date hereof;
fiscal year and that are required to be disclosed on Schedule 2.24; (civ) any agreement contracts and other agreements with any labor union union, works council or association representing any employee of the Company;
Employee; (dv) any agreement contracts and other agreements for the procurement by the Company (including by purchase or sale license) of software, materials, supplies, equipment, merchandise or services services, for an amount in excess of $100,000 per annum; (vi) Licenses In or Licenses Out that contains an escalation clause involve recurring subscription or license payments/revenues in excess of $100,000 per annum; (vii) contracts and other agreements for the exclusive license of any of the assets or properties of the Company or for the grant to any person of any option, right of first refusal (other than with respect to Company Stock), or preferential or similar right to purchase any of such assets or properties, including contracts containing any Most Favored Customer Provision; (viii) strategic partnership, alliance, joint development and joint marketing agreements, and joint venture agreements; (ix) contracts and other agreements that obligates obligate the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases of a particular product or service from a supplier; (x) contracts and other agreements with customers, which is not terminable on not more than 30 days notice (without penalty suppliers, partners or premium);
(e) any agreement for the sale of any of the assets or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(f) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(g) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers collaborators for the sharing of fees, the rebating of charges or other similar arrangements;
arrangements (i) any agreement obligating the Company to deliver maintenance services or future product enhancements or except for customer contracts containing a "most favored nation" pricing clause;
(j) any agreement relating to the acquisition by the Company rebating of any operating business or the capital stock of any other Person;
(k) any agreement requiring the payment to any Person of a brokerage or sales commission or a finder's or referral fee (other than charges arrangements to pay commissions or fees to employees in the ordinary course Ordinary Course of businessBusiness);
(l) any agreements, notes or other instruments relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations);
(m) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(r) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all Material Contracts (and all amendments, waivers or other modifications thereto) have been furnished or made available to the Buyer. Each Material Contract is valid, subsisting, in full force and effect, binding upon the Company and, to the Company's knowledge, the other parties thereto in accordance with their terms, and the Company is not in default under any of them, nor, to the Company's knowledge, is any other party to any Material Contract in default thereunder, nor, to the Company's knowledge, does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.33
Appears in 2 contracts
Sources: Merger Agreement (PTC Inc.), Merger Agreement
Contracts and Other Agreements. Section 3.12 (a) Except as listed in Schedule 3.1.5(a) or as required by this Agreement, none of the Disclosure Schedule sets forth a list of the following contracts and other agreements to which the Company Protego Entities is a party or by subject to any of the following agreements, whether written or oral, express or implied, which will continue to bind, or impose any liability or other obligation on, any of the Protego Entities or their respective businesses after the Closing Date:
(i) other than as specified in clause (ii) below, any agreement, contract, lease, arrangement, understanding or commitment, or series of related agreements, contracts, leases or commitments all with the same Person or related Persons, which involves an amount in excess of $500,000 on an annualized basis;
(ii) any agreement pursuant to which any of its assetsthe Protego Entities (A) has provided any advisory or monitoring services or issued any fairness opinion or similar report since January 1, properties 2003 and (B) has received, or securities are bound or subject (eachexpects to receive, a "Material Contract"):
(a) any agreement or series fee in excess of related agreements requiring aggregate payments by or to the Company of more than $50,000750,000;
(biii) any material agreement with or for the benefit of pursuant to which any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has Protego Entities receives any obligations as percentage of the date hereofreturns on investments made by any Person;
(civ) any agreement, contract, arrangement, understanding or commitment limiting or restraining in any material respect any of the Protego Entities or, to the Knowledge of the Protego Partners, any employee of any of the Protego Entities from engaging in any business, engaging in business in any geographic area or pursuing any strategic initiative or competing in any manner;
(v) any license or other agreement which relates in whole or in part to any Intellectual Property, other than nonmaterial licenses for software programs which are generally commercially available;
(vi) any agreement with any labor union or association representing employees of any employee of the CompanyProtego Entities, including, without limitation, the Protego Plans;
(dvii) any trust indenture, mortgage, promissory note, loan agreement or other contract for the purchase borrowing of money, any currency exchange, commodities or sale other hedging arrangement or any leasing transaction of materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company type required to purchase all or substantially all of its requirements of be capitalized as a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice liability in accordance with GAAP (without penalty or premium“Indebtedness”);
(eviii) any material agreement for the sale of any of the assets guarantee, support, indemnification, assumption or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusalendorsement of, or preferential or any similar rights to purchase any such assets or properties;
(f) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business commitment with respect to obligations in an aggregate amount not in excess of $50,000;
(g) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers for the sharing of feesto, the rebating of charges obligations, liabilities (whether accrued, absolute, contingent or other similar arrangements;
(iotherwise) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement relating to the acquisition by the Company of any operating business or the capital stock Indebtedness of any other Person;
(kix) other than as specified in clause (vi) above, any contract, agreement, arrangement or understanding between any of the Protego Entities, on the one hand, and the Protego Partners or any other Affiliate of any of the Protego Entities (including Aggero or Acentus but excluding any of the Protego Entities and any portfolio company of DAI), on the other hand;
(x) any agreement requiring material agreement, contract, arrangement, understanding or commitment relating to marketing, revenue sharing or similar arrangements;
(xi) any agreement, contract, arrangement, understanding or commitment containing “change of control” provisions which would require the payment to any Person consent of a brokerage third party in order to consummate the transactions contemplated by this Agreement or sales commission would otherwise give right to a termination right on the part of such third party;
(xii) any agreement, contract, arrangement, understanding or a finder's commitment relating to the acquisition or referral fee disposition of any business (other than arrangements to pay commissions whether by merger, sale of stock, sale of assets or fees to employees in the ordinary course of businessotherwise);
(lxiii) any agreementsmaterial agreement, notes contract, arrangement, understanding or other instruments relating to or evidencing outstanding indebtedness commitment between any of the Company for borrowed money Protego Entities, on the one hand, and any Governmental Authority, on the other hand (including capitalized lease obligationsother than governmental licenses or permits);
(m) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;
(nxiv) any agreement with any Governmental Authority that was entered into prior to compliance with all governmental regulations applicable with respect to such agreement, including regulations requiring a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;public bidding process; or
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(rxv) any other material agreement whether agreement, contract, arrangement, understanding or commitment not made in the ordinary course Ordinary Course of business. True Business.
(b) Each of the agreements, commitments, instruments, documents and complete copies of all Material Contracts undertakings required to be listed in Schedule 3.1.5(a) (the “Protego Contracts”) is valid and all amendments, waivers or other modifications thereto) have been furnished or made available to enforceable against the Buyer. Each Material Contract is valid, subsisting, in full force and effect, binding upon the Company Protego Entities and, to the Company's knowledgeKnowledge of the Protego Partners, the against any other parties party thereto in accordance with their termsits terms except where any such failure to be valid and enforceable has not had, and the Company is would not in default under any of themreasonably be expected to result in, nor, to the Company's knowledge, is any other party to any Material Contract in default thereunder, nor, to the Company's knowledge, does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, havea Material Adverse Effect with respect to the Protego Entities or except to the extent that such enforcement may be limited by applicable bankruptcy laws and other similar laws affecting creditors’ rights generally. None of the Protego Entities is, and to the Knowledge of the Protego Partners, no other party thereto is, in default in the performance, observance or fulfillment of any obligation, covenant or condition contained in the Protego Contracts, and no event caused by, relating to or affecting any of the Protego Entities has occurred which, with or without any notice or lapse of time, or both, would constitute a default by any of the Protego Entities thereunder or, to the Knowledge of the Protego Partners, would constitute a default by such other party thereunder, in each case except as has not had, and would not reasonably be reasonably likely expected to haveresult in, individually or in the aggregate, a Material Adverse EffectEffect with respect to the Protego Entities.
Appears in 1 contract
Sources: Contribution and Sale Agreement (Evercore Partners Inc.)
Contracts and Other Agreements. (a) Section 3.12 3.20(a) of the Advisor Disclosure Schedule sets (with paragraph references corresponding to those set forth below) contains a correct and complete list of all of the following contracts and or other agreements arrangements to which the Company Advisor is a party or by or to which any of its assetsassets is bound, properties or securities are bound or subject (each, a "Material Contract"):in each case as of the date hereof:
(ai) all contracts or other arrangements providing compensation for employment or consulting services, together with the name, position and rate of compensation of each Person party to such a contract or other arrangement and the expiration date of such contract or other arrangement;
(ii) all contracts or other arrangements with any agreement Person containing any provision or series covenant prohibiting or materially limiting the ability of the Advisor or any of its employees or other Persons who primarily provide services for it or, following the Closing, any of its Affiliates to engage in any business activity or compete with any Person;
(iii) all material partnership, joint venture, shareholders’ or other similar contracts or arrangements with any Person;
(iv) all contracts or other arrangements related agreements requiring aggregate to Indebtedness of the Advisor in excess of $25,000;
(v) all contracts or other arrangements involving payments by or to the Company Advisor of more than $50,00025,000;
(bvi) any agreement with all contracts or for the benefit of any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereof;
(c) any agreement with any labor union or association representing any employee of the Company;
(d) any agreement other arrangements for the purchase or sale of materials, supplies, equipment, merchandise software or services that contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(e) any agreement technology providing for the sale of any of the assets or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(f) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not payments in excess of $50,00025,000;
(gvii) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers for the sharing of fees, the rebating of charges all contracts or other similar arrangements;
(i) any agreement obligating the Company arrangements pursuant to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement relating to the acquisition by the Company of any operating business or the capital stock of any other Person;
(k) any agreement requiring the payment to any Person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business);
(l) any agreements, notes or other instruments relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations);
(m) any lease, sublease or other agreement under which the Company Advisor is lessor or a lessee of any real property or equipment machinery, equipment, motor vehicle, office furniture, fixtures or other tangible property;
(n) any agreement with a change personal property providing for lease payments in excess of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent$25,000 per year; and
(rviii) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all Material Contracts (and all amendments, waivers contracts or other modifications thereto) have been furnished or made available arrangements that are material to the Buyer. Each Material Contract Advisor and are not otherwise required to be included in Section 3.20(a) of the Advisor Disclosure Schedule by clauses (i) through (vii).
(b) The Advisory Agreement and each other contract set forth on Section 3.20(a) of the Advisor Disclosure Schedule is valid, subsisting, in full force and effecteffect against the Advisor and constitutes a legal, valid and binding upon agreement of the Company Advisor, enforceable against the Advisor, and, to the Company's knowledgeKnowledge of the Advisor Parent, the each other parties thereto party thereto, in accordance with their its terms, in each case, except as enforceability may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or other similar Laws or affecting or relating to enforcement or creditors’ rights generally and (ii) general equitable principles. Neither the Company is not in default under any of them, Advisor nor, to the Company's knowledgeKnowledge of the Advisor Parent, is any other party to any Material Contract such contract is in violation or breach in any material respect of, or in default thereunderin any material respect under, nor, nor to the Company's knowledge, does any Knowledge of the Advisor Parent has there occurred an event or condition exist that with notice or lapse the passage of time or both giving of notice (or both) would constitute a default thereunderunder, exceptor permit the termination of, in each the Advisory Agreement or any other contract set forth on Section 3.20(a) of the foregoing casesAdvisor Disclosure Schedule.
(c) The Advisor Parent has delivered to the REIT true and complete copies (or if none exist, such defaults as would notreasonably complete and accurate written descriptions) of each contract required to be listed on Section 3.20(a) of the Advisor Disclosure Schedule, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effecttogether with all amendments and supplements thereto.
Appears in 1 contract
Sources: Contribution Agreement
Contracts and Other Agreements. Section 3.12 of the The Seller's Disclosure Schedule sets forth a list all of the following contracts and other agreements (other than the Leases) to which the Company is a party or by which the Company or to which any of its assets, assets or properties or securities are bound or subject (each, a "Material Contract"):
(a) any agreement or series of related agreements requiring aggregate payments by or to the Company of and which involve more than $50,000;
20,000: (bi) any agreement with or for the benefit of any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereof;
(c) any agreement contracts and other agreements with any labor union or association representing any employee employees in employment negotiations; (ii) contracts, including but not limited to dealer agreements, having a term of more than one year not entered into in the Company;
(d) any agreement ordinary course of business for the purchase or sale of materials, supplies, equipmentmerchandise, merchandise equipment or services that contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice services; (without penalty or premium);
(eiii) any agreement contracts and other agreements for the sale of any of the assets or properties of the Company (other than contracts and other agreements in the ordinary course of business business) or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
; (fiv) joint venture and partnership agreements; (v) contracts or other agreements under which the Company has agreed to indemnify any agreement party or to share any liability of suretyany party including, guarantee or indemnificationwithout limitation, liability with respect to taxes, other than contracts and other agreements regarding the sale of goods in the ordinary course of business business; (vi) contracts and other agreements with respect to obligations in an aggregate amount not in excess of $50,000;
(g) any agreement which contains covenants of the Company not to compete in any line of businesscustomers, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers dealers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
; (iviii) any agreement obligating contracts and other agreements containing covenants of the Company not to deliver maintenance services compete in any line of business or future product enhancements or containing a "most favored nation" pricing clause;
with any person in any geographical area; (jviii) any agreement contracts and other agreements relating to the acquisition by the Company of any operating business or the capital stock of any other Person;
person; (kix) options for the sale or purchase of any agreement stock, note or other security; (x) contracts and other agreements requiring the payment to any Person person of a brokerage royalty, override or sales commission or a finder's or referral fee similar commission; (xi) contracts and other than arrangements to pay commissions or fees to employees in the ordinary course of business);
(l) any agreements, notes or other instruments agreements relating to the borrowing of money or evidencing outstanding indebtedness the incurrence of indebtedness; (xii) guarantees, performance or completion bonds and surety agreements; (xiii) contracts of agency, representation, distribution or franchise; and (xiv) contracts for the Company employment for borrowed money (including capitalized lease obligations);
(m) any leaseperiod of time whatsoever, sublease or other agreement under which restricting the Company is lessor or lessee employment, of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with salaried employee. There have been delivered to the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(r) any other material agreement whether or not made in the ordinary course of business. True and complete Purchaser copies of all Material Contracts (of the contracts and other agreements set forth or required to be set forth on the Seller's Disclosure Schedule or, if unwritten, accurate summaries of all amendmentsof the material terms thereof, waivers and there are no other material terms of such contracts or other modifications thereto) have been furnished or made available to the Buyeragreements except as set forth on such copies and/or summaries. Each Material Contract is All of such contracts and other agreements are valid, subsisting, in full force and effect, binding upon the Company and, to the CompanySeller's knowledge, the other parties thereto thereto, in accordance with their terms, ; and neither the Company is not nor, to the Seller's knowledge, the other parties thereto, are in material default under any of them, nor, to . No approval or consent of any person is needed in order that the Companycontracts and other agreements set forth on the Seller's knowledge, is any other party to any Material Contract Disclosure Schedule continue in default thereunder, nor, to full force and effect following the Company's knowledge, does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each consummation of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effecttransactions contemplated by this Agreement.
Appears in 1 contract
Contracts and Other Agreements. (a) Section 3.12 2.12 of the Seller Disclosure Schedule (indicating in each case which of clauses (i) through (xv) is applicable) sets forth a list of the following contracts all contracts, commitments and other agreements (whether written or oral) related to the Business to which the Company Seller is a party or by or to which any of its assetsit is bound in connection with the Business (collectively, properties or securities are bound or subject (eachthe “Contracts”), a "Material Contract"):including, without limitation, the following:
(ai) any agreement or series of related agreements requiring aggregate payments by or relating to the Company of more than $50,000Seller Intellectual Property;
(bii) any agreement related to the Business with customers or for other purchasers of goods or services from Seller;
(iii) any agreement related to the benefit Business in which Seller is the purchaser of goods or services;
(iv) any distributor, sales representative or similar agreement related to the Business; [*] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. Confidential treatment has been requested with respect to this information.
(v) any agreement related to the Business with any current or former officer, director, holder member or manager of Seller, or with any Affiliate of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereofsuch Persons;
(cvi) any indenture, trust agreement, loan agreement or note that involves or evidences outstanding Indebtedness, obligations or liabilities for borrowed money or any agreement of surety, guarantee or indemnification, in each case to the extent related to the Business;
(vii) any agreement with any labor union or association representing any employee (other than this Agreement) for the disposition of a material portion of the Company;
(d) any agreement for the purchase or sale of materialsPurchased Assets, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more other than 30 days notice (without penalty or premium);
(e) any agreement for the sale of any of the assets or properties of the Company other than inventory in the ordinary course of business or for the business;
(viii) any grant to any person Person of any options, rights of first refusal, right of exclusive negotiation or preferential or similar rights to purchase any such assets or propertiesof the Purchased Assets;
(fix) except as provided in this Agreement, any agreement of surety, guarantee that limits or indemnification, other than agreements in restricts the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(g) any agreement which contains covenants of the Company not to compete Business from competing or engaging in any line of business, or in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(i) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement relating to the acquisition by the Company of any operating business or the capital stock of any other Person;
(kx) any employment and consulting agreements, non-competition, confidentiality, non-solicitation and similar agreements, in each case with respect to the Business;
(xi) any agreement related to the Business requiring the payment to any Person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business)fee;
(l) any agreements, notes or other instruments relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations);
(mxii) any lease, sublease or other agreement under which the Company Seller is lessor or lessee of any real or personal property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action used by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agentBusiness; and
(rxiii) any other material agreement whether agreements related to the Business to which Seller is a party.
(b) Seller has delivered to Buyer or not made in the ordinary course of business. True its representatives true and complete copies of all Material written Contracts and accurate summaries of all oral Contracts (and all amendments, waivers amendments or other modifications thereto) have been furnished or made available to the Buyer). Each Material Contract is All Contracts are valid, subsisting, in full force and effect, effect and binding upon the Company against Seller and, to the Company's knowledgeknowledge of Seller, the other parties thereto in accordance with their respective terms. Seller has paid in full all amounts now due from it under all such Contracts, and the Company is not has satisfied in default under any full or provided for all of them, norits Liabilities thereunder that are presently required to be satisfied or provided for. None of Seller or, to the Company's Seller’s knowledge, is any other party to any Material Contract thereto, is in default thereunderof any of its obligations under any such Contract, nor, to the Company's knowledge, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.
Appears in 1 contract
Contracts and Other Agreements. Section 3.12 of the Disclosure Schedule 3.11 sets forth a list all of the following contracts and other agreements types of Contracts to which the Company or any of its Subsidiaries is a party or by or to which the Company or any of its Subsidiaries, or their respective assets, properties or securities are businesses, including the Business, is bound or subject (eachcollectively, a the "Material ContractContracts"):
(a) any agreement all employment agreements and commitments, all consulting or series of related severance agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement arrangements and all other contracts or agreements, including indemnification agreements, with or for the benefit of any current or former officer, director, holder of any securityemployee, employee or consultant consultant, agent, other representative of the Company under which or any of its Subsidiaries or with any Affiliate of the Company has or any obligations as of the date hereof;its Subsidiaries.
(cb) any agreement contracts and other agreements with any labor union or association representing any employee of the Companyemployee;
(dc) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(e) any agreement contracts and other agreements for the sale of any of the its assets or properties of the Company other than in the ordinary course of business or for the grant to any person Person of any options, rights of first refusal, or preferential or similar rights to purchase any such of its assets or properties, in each case in an amount exceeding $25,000;
(fd) any agreement of surety, guarantee joint venture and partnership agreements or indemnification, contracts and other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(g) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(i) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement relating to the acquisition by the Company or any of its Subsidiaries of any operating business or the capital stock of any other Person;
(e) all capitalized leases, pledges, conditional sale or title retention agreements involving the payment of more than $100,000;
(f) any take or pay or requirements contracts or agreements or any other contracts or agreements requiring the Company or any of its Subsidiaries to pay regardless of whether products or services are received;
(g) contracts and other agreements not cancelable without penalty by the Company or any of its Subsidiaries party thereto on sixty (60) or fewer days' notice calling for an aggregate purchase price or payments to or from the Company or any of its Subsidiaries, as the case may be, in any one year of more than $25,000 in any one case (or in the aggregate, in the case of any related series of contracts and other agreements);
(h) contracts and other agreements with clients, customers or any other Person for the sharing of fees, the rebating of charges or purchase price or other similar arrangements;
(i) contracts and other agreements containing covenants pertaining to the right to compete or not compete in any line of business or similarly restricting the ability to conduct business with any Person or in any geographical area;
(j) all agreements relating to the consignment or lease of personal property (whether the Company or any of its Subsidiaries is lessee, sublessee, lessor, or sublessor), other than such agreements that provide for annual payments of less than $25,000;
(k) any agreement requiring the payment to any Person all licences and franchise agreements involving an amount in excess of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business)$25,000;
(l) any agreementsall mortgages, notes or indentures, notes, bonds, letter of credit and other instruments agreements relating to the borrowing of money, creation of Liens, any indemnity, or evidencing outstanding indebtedness the guarantee of the payment of liabilities or performance of obligations to or by the Company for borrowed money (including capitalized lease obligations)or any of its Subsidiaries, to or by any other Person;
(m) any leasestockholder agreement, sublease registration rights agreement or any arrangement relating to or affecting the ownership of the common stock or other agreement under which equity interests of the Company is lessor or lessee any of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agentits Subsidiaries; and
(r) any other material agreement whether or not made in the ordinary course of business. and True and complete copies of all of the Material Contracts (and all amendments, waivers or other modifications thereto) have been furnished or made available delivered to the Buyer. Each Except as disclosed on Schedule 3.11, all of the Material Contract is valid, subsisting, in full force and effect, Contracts are to the Seller's Knowledge binding upon the Company and, to the Company's knowledge, the other parties thereto in accordance with their terms, terms and the Company or relevant Subsidiary has satisfied in full or provided for all of its liabilities and obligations thereunder requiring performance prior to the date hereof in all material respects, is not in default under any of themsuch Material Contract, nor, nor to the CompanySeller's knowledge, is any other party to any Material Contract in default thereunder, nor, to the Company's knowledge, Knowledge does any condition exist that with notice or lapse of time or both would constitute such a default. To the Seller's Knowledge, no other party to any such Material Contract is in default thereunder, except, in each nor does any condition exist that with notice or lapse of time or both would constitute such a default. None of the foregoing casesother parties to any such Material Contracts has given notice to the Company or relevant Subsidiary that it intends to terminate or materially alter the provisions of such Material Contract. Except as separately identified on Schedule 3.11, such defaults as would not, either individually no approval or consent of any Person is required under any Material Contract in connection with consummation of the aggregate, have, or be reasonably likely to have, a Material Adverse Effecttransactions contemplated by this Agreement.
Appears in 1 contract
Contracts and Other Agreements. (a) Section 3.12 4.16 of the Company Disclosure Schedule sets forth a list as of the following contracts date of this Agreement each contract and other agreements agreement as described below (whether or not in writing) which is currently in effect (unless indicated otherwise below) to which the Company or its Subsidiaries is a party or by or to which any of its assetsassets or properties are bound, properties excluding agreements with portfolio companies included in the Company's or securities are bound or subject (each, a "Material Contract"):its Subsidiaries' investment portfolios:
(ai) any agreement or series of related contracts and other agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder employee, consultant, agent or other representative of any securitythe Company, employee or consultant other than pursuant to Plans described in Section 4.23 of the Company under which the Company has any obligations as of the date hereofDisclosure Schedule;
(cii) any agreement contracts and other agreements with any labor union or association representing any employee of the Companyemployee;
(diii) any agreement contracts and other agreements for the purchase or sale of materialsequipment or services, supplies, equipment, merchandise which involve the receipt or services that contains an escalation clause or that obligates payment by the Company to purchase all or substantially all its Subsidiaries of its requirements an amount in excess of a particular product or service from a supplier or to make periodic minimum purchases $2,000 per month (in the aggregate in the case of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premiumany related series of contracts and other agreements);
(eiv) any agreement contracts and other agreements for the sale of any of the assets or properties of the Company other than in the ordinary course of business or its Subsidiaries or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such of the assets or properties;
(f) any agreement properties of suretythe Company or its Subsidiaries, guarantee which involve the receipt or indemnification, other than agreements in payment by the ordinary course Company or its Subsidiaries of business with respect to obligations in an aggregate amount not in excess of $50,00010,000 (in the aggregate in the case of any related series of contracts and other agreements);
(gv) any agreement which contains covenants of the Company not to compete contracts and other agreements calling for an aggregate purchase price or payments in any line one year of business, in any geographic area or with any Person or covenants of any other Person not to compete with more than $10,000 payable by the Company or its Subsidiaries in any line one case (in the aggregate in the case of business any related series of the Companycontracts and other agreements);
(hvi) any agreement with customers contracts and other agreements, whether or suppliers for the sharing of feesnot currently in effect, the rebating of charges or other similar arrangements;
(i) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement relating to the acquisition by the Company or its Subsidiaries of any operating business of, or the capital stock disposition of any business involving the Company or its Subsidiaries to, any other Personperson;
(kvii) contracts relating to the disposition or acquisition of any agreement requiring investment or of any interest in any person, which involved the receipt or payment to any Person by the Company or its Subsidiaries of a brokerage or sales commission or a finder's or referral fee an amount in excess of $10,000 (other than arrangements to pay commissions or fees to employees in the ordinary course aggregate in the case of businessany related series of contracts and other agreements);
(lviii) joint venture and similar agreements which would involve the receipt or payment by the Company or its Subsidiaries of an amount in excess of $50,000 (in the aggregate in the case of any agreements, notes related series of contracts or other instruments relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligationsagreements);
(mix) any leasecontracts and other agreements, sublease whether or other agreement not currently in effect, under which the Company is lessor or lessee its Subsidiaries agreed to indemnify any party or to share tax liability of any real property party, which could involve the payment by the Company or equipment its Subsidiaries of an amount in excess of $10,000 (in the aggregate in the case of any related series of contracts or other tangible propertyagreements);
(nx) any agreement with a change contracts and other agreements containing covenants of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(r) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all Material Contracts (and all amendments, waivers or other modifications thereto) have been furnished or made available to the Buyer. Each Material Contract is valid, subsisting, in full force and effect, binding upon the Company andor its Subsidiaries, or, to the Company's knowledge, the its officers, directors or employees, not to compete in or solicit employees in any line of business or with any person in any geographical area or covenants of any other parties thereto in accordance person not to compete with their terms, and or solicit employees from the Company is not in default under any line of thembusiness or in any geographical area;
(xi) contracts and other agreements relating to the making of any loan or other extension of credit by the Company or its Subsidiaries or of any loan by the Company or its Subsidiaries to a stockholder, nor, officer or director of the Company or its Subsidiaries or from a stockholder of the Company to the Company's knowledge;
(xii) contracts and other agreements relating to the borrowing of money by, is or indebtedness of, the Company or its Subsidiaries or the direct or indirect guaranty by the Company or its Subsidiaries of any obligation or indebtedness of any other party person or Governmental Entity (other than any accounts receivable or accounts payable of the Company or its Subsidiaries), including, without limitation, any
(a) agreement or arrangement relating to the maintenance of compensating balances, (b) agreement or arrangement with respect to lines of credit, (c) agreement to advance or supply funds to any Material Contract other person other than in default thereunderthe ordinary course of business, nor(d) agreement to pay for property, products or services of any other person even if such property, products or services are not conveyed, delivered or rendered, (e) keep-well, make-whole or maintenance of working capital or earnings or similar agreement, and (f) guaranty with respect to any lease or other similar periodic payments to be made by any such person;
(xiii) contracts and other agreements relating to the Company's knowledgeprovision by or to the Company of third party management or administration services, does which involve the receipt or payment by the Company or its Subsidiaries of an amount in excess of $10,000 (in the aggregate in the case of any condition exist that with notice related series of contracts and other agreements);
(xiv) each Lease and lease of personal property which requires annual lease payments in excess of $10,000;
(xv) contracts and other agreements pursuant to which the Company or lapse of time its Subsidiaries obtains or both would constitute grants insurance or reinsurance;
(xvi) contracts and other agreements between the Company or its Subsidiaries and any Governmental Entity;
(xvii) contracts and other agreements which require payments generated by a default thereunder, except, change in each control of the foregoing casesCompany;
(xviii) contracts and other agreements with any stockholder, such defaults as would notdirector or officer of the Company; and
(xix) contracts and other agreements, either individually whether or not currently in the aggregateeffect, have, relating to disposal of any controlled or be reasonably likely to have, a Material Adverse Effecthazardous substance or waste.
Appears in 1 contract
Contracts and Other Agreements. Section 3.12 of the Disclosure Schedule sets forth a list of the following contracts DB3/200169974.12
(a) Contracts and other agreements agreements, whether written or binding oral (“Contracts”) described in this subsection, to which the Company is a party or by or to which it or any of its assets, assets or properties or securities are bound or subject (each, a "are referred to herein collectively as “Material Contract"):Contracts”:
(ai) any agreement or series of related agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder Member (including any of their respective Affiliates) or any security, employee Employee or consultant independent contractor of the Company under or with any entity in which any of the foregoing is an officer, director or five percent (5%) or greater member and pursuant to which the Company or such other party has current or future obligations or liabilities in excess of $25,000 in any obligations as fiscal year, excluding salary and bonuses of the date hereofEmployees;
(cii) contracts and other agreements pursuant to which the Company or the other party thereto has current or future obligations or liabilities in excess of $25,000 in any agreement fiscal year and that are required to be disclosed on Schedule 2.26 of the Company Disclosure Schedule;
(iii) contracts and other agreements with any labor union union, works council or association representing any employee of the CompanyEmployee;
(div) any agreement contracts and other agreements for the procurement by the Company (including by purchase or sale license) of software, materials, supplies, equipment, merchandise or services services, or relating to capital expenditures, for an amount in excess $25,000 per annum;
(v) contracts and other agreements for the sale or license by the Company to any third party of software, materials, supplies, equipment, merchandise or services, or relating to capital expenditures, that contains involves an escalation amount or value in excess of $50,000 per annum;
(vi) contracts and other agreements for (A) the sale or (B) the exclusive license of any of the assets or properties of the Company not described in clause (iv) or for the grant to any person of any option, right of first refusal, or preferential or similar right to purchase any of such assets or properties;
(vii) partnership, strategic alliance, joint development, joint marketing and joint venture agreements;
(viii) contracts and other agreements that obligates obligate the Company to purchase or license all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases or licenses of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(eix) any agreement for the sale of any of the assets contracts and other agreements with customers, suppliers, partners or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(f) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(g) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers collaborators for the sharing of fees, the rebating of charges or other similar arrangements, including any Referral Agreements or contracts containing any Most Favored Customer Provision;
(ix) any agreement obligating contracts or other agreements under which the Company agrees to deliver maintenance services indemnify any party for Tax liabilities or future product enhancements or containing a "most favored nation" pricing clauseto share the Tax liability of any party;
(jxi) contracts and other agreements containing any agreement covenant limiting the freedom of the Company or any of its present or future Affiliates to (A) engage in any line of business or in any geographic territory or to compete with any Person, or which grants to any Person any exclusivity with respect to any geographic territory, any customer, or any product or service, (B) solicit for employment, hire or employ any Person, or (C) acquire property (tangible or intangible); DB3/200169974.12
(xii) contracts and other agreements relating to the acquisition or disposition by the Company of any operating business or the capital stock or other securities of any other Person;
(kxiii) any agreement contracts and other agreements requiring the payment to any Person of a brokerage commission, fee or sales commission or a finder's or referral fee (royalty, other than arrangements to pay commissions or fees to employees Employees in the ordinary course of business);
(lxiv) contracts and other agreements pursuant to which the Company may collect any Personal Information from any third parties;
(xv) mortgages, indentures, loan or credit agreements, factoring agreements, promissory notes or and other agreements and instruments relating to the borrowing of money or evidencing outstanding indebtedness financing or sale of the Company for borrowed money (including capitalized lease obligations)receivables;
(mxvi) any leaseresearch, sublease development (whether contracted or shared), and manufacturing agreements;
(xvii) reseller or distributorship agreements, original equipment manufacturer (OEM) agreements, or systems integrator agreements;
(xviii) leases, financing agreements, subleases or other agreement agreements under which the Company is lessor or lessee of any real property or equipment or other tangible personal property;
(nxix) any agreement with a change licenses, sublicenses and other agreements required to be listed in Schedule 2.16(c) of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agentDisclosure Schedule; and
(rxx) any other material agreement whether or not made in contracts with Governmental Entities.
(b) Schedule 2.13 of the ordinary course Company Disclosure Schedule contains a true, correct and complete list of businessall Material Contracts numbered as appropriate under subsection (a) hereof. True The Company has Made Available to Parent true and complete copies of all Material Contracts (and all amendments, waivers amendments or other modifications thereto) have been furnished or made available to thereto or, in the Buyercase of oral Material Contracts, complete and accurate descriptions. Each All the Material Contract is Contracts are valid, subsisting, in full force and effect, and binding upon the Company and, to the Knowledge of the Company's knowledge, on the other parties thereto in accordance with their terms, and party(ies) thereto. No written notice of termination or amendment of any Material Contract has been given to the Company by any other party thereto. Neither the Company nor, to the Knowledge of the Company, any other party thereto, is not in default under any of themMaterial Contract, norand, to the Company's knowledge, is any other party to any Material Contract in default thereunder, nor, to Knowledge of the Company's knowledge, no event has occurred nor does any condition exist that with notice or lapse of time or both would constitute a default by the Company or any such other party thereunder. The Company is in compliance with all material delivery requirements, excepttimelines, schedules, time of performance requirements and other material milestones under all Material Contracts. The Company has not incurred any significant cost over-runs on any Material Contract and the Company has no reasonable basis to believe that it will incur any such significant cost over-runs.
(c) There is no Contract or Order to which the Company is a party, subject or otherwise bound, that would reasonably be expected to prohibit, impair or otherwise limit: (a) any business practice of the Company or any of its present Affiliates or Buyer; (b) any acquisition of property (tangible or intangible) by the Company or any of its present Affiliates or Buyer or Parent; (c) the conduct of business by the Company; or (d) the freedom of the Company or any of its present Affiliates or Buyer or Parent to engage in any line of business or to compete or do business with any Person, in each case whether arising as a result of a change in control of the foregoing casesCompany or any of its present Affiliates or Buyer or Parent or otherwise. Without limiting the generality of the foregoing, such defaults as would notthe Company has not (x) entered DB3/200169974.12 into any Contract under which the Company or any of its present Affiliates or Buyer or Parent is restricted from selling, either individually licensing, manufacturing or otherwise distributing any of its technology or products or from providing services to customers or potential customers or any class of customers, in any geographic area, during any period of time, or in any segment of the aggregatemarket, have(y) granted any Person exclusive rights to sell, license, manufacture or be reasonably likely otherwise distribute any of the Company’s or any of its present Affiliates’ or Buyer’s or Parent’s technology or products in any geographic area or with respect to haveany customers or potential customers or any class of customers during any period of time or in any segment of the market or (z) entered into any Contract that will bind Buyer or any of its Affiliates with respect to Buyer’s or Buyer’s Affiliates’ own customers, a Material Adverse Effectproducts or services.
Appears in 1 contract
Sources: Merger Agreement (PTC Inc.)
Contracts and Other Agreements. Section 3.12 Schedule 2.15 contains a complete and ------------------------------ ------------- accurate list of the Disclosure Schedule sets forth a list all of the following outstanding contracts and other agreements to which FLS, and to the Company Knowledge of Seller, AmeriSteel, is a party or by or to which any of its assets, they or their respective assets or properties or securities are bound or subject (eachsubject, a "Material Contract"):or which are necessary for FLS and AmeriSteel to conduct their business as presently conducted:
(ai) any agreement or series of related contracts and other agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder of employee, consultant, agent or other representative or with any security, employee person or consultant entity in which any of the Company under which foregoing has an interest, including any "Affiliate" or "Associate" of such person or entity, as such terms are defined in the Company has any obligations as Securities Act of 1933 (the date hereof"Securities Act") and the rules and regulations published thereunder, calling for annual payments in excess of $100,000;
(cii) any agreement contracts and other agreements with any labor union or association representing any employee of the Companyemployee;
(diii) any agreement binding contracts and other agreements for the purchase or sale supply to any person of materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company to purchase all or substantially all a portion of its such person's requirements of a particular any product or service from a supplier sold by AmeriSteel with an annual dollar value of $1 million or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium)more;
(eiv) any agreement contracts and other agreements calling for individual payments in excess of $250,000 for the sale of any of the their respective assets or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such of its assets or properties;
(fv) joint venture or partnership agreements;
(vi) contracts or other agreements under which FLS or AmeriSteel agrees to indemnify any agreement of surety, guarantee or indemnification, party (other than indemnification under routine default provisions of contracts) or to share tax liability of any party;
(vii) contracts or other agreements of guaranty or relating to matters of suretyship to which either FLS or AmeriSteel is a party or by which its assets or properties are subject or bound;
(viii) contracts and other agreements calling for payments in any one year, of more than $250,000 excluding purchase or sales orders entered into by either FLS or AmeriSteel as a purchaser or a seller in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000business;
(gix) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any contracts and other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement agreements with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangementsarrangements with an annual dollar value of $250,000 or more;
(ix) contracts and other agreements containing obligations or liabilities of any agreement obligating the Company kind to deliver maintenance services holders of AmeriSteel's securities (including, without limitation, an obligation to register any of such securities under any federal or future product enhancements or containing a "most favored nation" pricing clausestate securities laws);
(jxi) contracts and other agreements containing covenants of AmeriSteel not to compete in any agreement line of business or with any person in any geographical area or covenants of any other person or entity not to compete with either of FLS or AmeriSteel in any line of business or in any geographical area;
(xii) contracts and other agreements requiring annual payments in excess of $100,000 relating to the acquisition by the Company either FLS or AmeriSteel of any operating business or the capital stock of any other Personperson, corporation or other entity;
(kxiii) any agreement contracts or agreements requiring annual payments in excess of $50,000 relating to Proprietary Rights (as defined in Section 2.19) owned, licensed or used by either FLS or AmeriSteel in its business;
(xiv) contracts and other agreements requiring the payment to any Person person of a brokerage royalty, override or sales similar commission or a finder's fee with an annual dollar value of $250,000 or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business)more;
(lxv) contracts and other agreements relating to the borrowing of money by FLS or AmeriSteel or subjecting any agreementsassets or properties of FLS or AmeriSteel to security interests, notes liens or other instruments relating to liabilities or evidencing outstanding indebtedness obligations with an annual dollar value of the Company for borrowed money (including capitalized lease obligations)$1,000,000 or more;
(mxvi) any leaseagreement, sublease contract or other agreement commitment which, under which current market conditions, might reasonably be expected to have a potential adverse impact on the Company is lessor business or lessee operations of any real property FLS or equipment AmeriSteel with an annual dollar value of $250,000 or other tangible property;more; or
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(rxvii) any other material contract or other agreement whether or not made in the ordinary course of businessbusiness with an annual dollar value of $250,000 or more. True There have been delivered or made available to Buyer true and complete copies of all Material Contracts (of the written contracts and other agreements of FLS, and AmeriSteel, described on Schedule 2.15. Except as described in Schedule 2.15, all amendmentsof such ------------- ------------- contracts and other agreements are valid and binding upon FLS, waivers or other modifications thereto) have been furnished or made available and to the Buyer. Each Material Contract is validKnowledge of Seller AmeriSteel, subsisting, in full force and effect, binding upon the Company and, to the Company's knowledge, the other parties thereto in accordance with their terms, and the Company is not in default under any of themFLS, nor, and to the Company's knowledgeKnowledge of Seller AmeriSteel, is any other party has and will have performed in all respects material to any Material Contract in default thereunder, nor, such contracts all contractual obligations required to the Company's knowledge, does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each be performed by it as of the foregoing cases, such defaults date hereof and as would not, either individually or in of the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.Closing
Appears in 1 contract
Contracts and Other Agreements. Section 3.12 4.15 of the Disclosure Schedule sets forth a list of the following contracts and other agreements Contracts to which the Company or any Company Subsidiary is a party or by or to which any of its assets, properties or securities are bound or subject (each, a "Material Contract"):
(a) any agreement or series of related agreements requiring aggregate payments by or to the Company or any Company Subsidiary of more than $50,000100,000;
(b) any agreement with or for the benefit of any current or former officerofficer or director, directormanager, holder of any security, employee or consultant of the Company or any Company Subsidiary under which the Company has or any Company Subsidiary had any obligations as of the date hereofof the Original Merger Agreement and which (i) involves an obligation of the Company or any Company Subsidiary to make payments exceeding $100,000 in any year or (ii) involves any severance or termination payments or other obligation other than as required by Law;
(c) any agreement with any labor union or association representing any employee of the CompanyCompany or any Company Subsidiary;
(d) any agreement for the purchase or sale of any materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company or any Company Subsidiary to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 thirty (30) days notice (without penalty or premium);
(e) any agreement for the sale of any of the assets assets, properties or properties securities of the Company or any Company Subsidiary other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets assets, properties or propertiessecurities;
(f) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000100,000;
(g) any agreement which contains covenants of the Company or any Company Subsidiary not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person (other than employees, former employees, consultants or former consultants of the Company or any Company Subsidiary) not to compete with the Company or any Company Subsidiary or in any line of business of the CompanyCompany or any Company Subsidiary;
(h) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(i) any agreement obligating the Company or any Company Subsidiary to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement relating to the acquisition by the Company or any Company Subsidiary of any operating business or the capital stock of any other Person;
(k) any agreement requiring the payment to any Person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees or agents in the ordinary course of business);
(l) any agreements, notes or other instruments documents relating to or evidencing outstanding indebtedness of the Company or any Company Subsidiary for borrowed money (including capitalized lease obligations);
(m) any lease, sublease or other agreement under which the Company or any Company Subsidiary is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger, the Purchase, the Contribution or the Subsidiary Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;Property other than those entered into with present or former employees or consultants in the ordinary course of business consistent with past practice; and
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(r) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all Material Contracts (and all amendments, waivers or other modifications thereto) have been were furnished or made available to the BuyerBuyer prior to the date of the Original Merger Agreement. Each Material Contract is valid, subsisting, in full force and effect, binding upon the Company or any Company Subsidiary, as applicable, and, to the Company's knowledgeKnowledge, the other parties thereto in accordance with their terms, and neither the Company nor any Company Subsidiary, as applicable, is not in default under any of them, nor, to the Company's knowledgeKnowledge, is any other party to any Material Contract in default thereunder, nor, to the Company's knowledgeKnowledge, does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Sycamore Networks Inc)
Contracts and Other Agreements. Section 3.12 To the knowledge of VGPO, the VGPO Disclosure Schedule sets forth a correct and complete list of all of the following currently in effect:
(i) written contracts and other agreements to which the Company is a party or by or to which any of its assets, properties or securities are bound or subject (each, a "Material Contract"):
(a) any agreement or series of related agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder stockholder or employee of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereof;VGPO involving more than $25,000,
(cii) any agreement contracts and other agreements with any labor union or association representing any employee of the CompanyVGPO or otherwise providing for any form of collective bargaining;
(diii) any agreement contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation escalation, renegotiation or redetermination clause or that obligates the Company obligate VGPO to purchase all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(eiv) any agreement contracts and other agreements for the sale of any of the assets or properties of the Company VGPO other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties;
(fv) any agreement of surety, guarantee partnership or indemnification, other than joint venture agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000which VGPO is a party;
(gvi) any agreement which contains covenants contracts with agents or foreign representatives regarding the sales or marketing of the Company not to compete in any line services or products of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the CompanyVGPO;
(hvii) contracts or other agreements under which VGPO agrees to act as surety or guarantor for or to indemnify any agreement party (other than required indemnification provisions in customer contracts) or to share the tax liability of any party;
(viii) contracts, options, outstanding purchase orders and other agreements for the purchase of any material asset, tangible or intangible;
(ix) contracts and other agreements with customers customers, suppliers or suppliers other parties for the sharing of fees, the rebating of charges or other similar arrangementsarrangements other than such contracts entered into in the ordinary course of business;
(ix) contracts and other agreements containing obligations or liabilities of any agreement obligating kind to holders of the Company securities of VGPO as such (including, without limitation, an obligation to deliver maintenance services register any of such securities under any federal or future product enhancements or containing a "most favored nation" pricing clausestate securities laws);
(jxi) contracts and other agreements containing covenants of VGPO not to compete in any agreement line of business or with any person or entity or covenants of any other person or entity not to compete with VGPO in any line of business;
(xii) contracts and other agreements relating to the acquisition by the Company VGPO of any operating business or the capital stock of any other Personperson or entity;
(kxiii) any agreement contracts and other agreements requiring the payment to any Person party of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business)fee;
(lxiv) any contracts, indentures, mortgages, promissory notes, debentures, loan agreements, notes or guaranties, security agreements, pledge agreements, and other agreements and instruments relating to the borrowing or evidencing outstanding indebtedness lending of the Company for borrowed money (including capitalized lease obligations)by VGPO or securing any such liability by VGPO;
(mxv) any lease, sublease agreement or other agreement under which the Company is lessor series of related agreements requiring aggregate payments by or lessee to VGPO of any real property or equipment or other tangible propertymore than $50,000;
(nxvi) any agreement with a change of control provision contracts under which VGPO will acquire or otherwise requiring any consenthas acquired ownership of, approvalor license to, waiver or intangible property, including software other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agentthan commercially available end-user licenses; and
(rxvii) any other material contract or other agreement to which VGPO is a party or by which any of its assets are bound whether or not made in the ordinary course of business. True VGPO has delivered or made available to EPIC true and complete copies of all Material Contracts of the contracts and other agreements (and all amendments, waivers or other modifications thereto) have been furnished or made available to set forth in the BuyerVGPO Disclosure Schedule. Each Material Contract is All of such contracts and other agreements are valid, subsisting, in full force and effect, binding upon the Company and, VGPO and to the Company's knowledgeknowledge of VGPO, binding upon the other parties thereto in accordance with their terms. Other than defaults which would not, and either singly or in the Company aggregate, have an VGPO Material Adverse Effect, VGPO is not in default under any of themsuch contracts and other agreements, nor, to the Company's knowledgeknowledge of VGPO, is any other party to any Material Contract such contract or other agreement in default thereunder, nor, to the Company's knowledge, nor does any condition exist that constitutes or with notice or lapse of time or both would constitute a default by VGPO thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (V Gpo Inc)
Contracts and Other Agreements. Section 3.12 3.14 of the AutoCyte Disclosure Schedule sets forth a correct and complete list all of the following currently effective contracts:
(a) written contracts and other agreements to which the Company is a party or by or to which any of its assets, properties or securities are bound or subject (each, a "Material Contract"):
(a) any agreement or series of related agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder stockholder or employee of AutoCyte involving more than $25,000 (provided, in the case of a loan by AutoCyte to any securitysuch person, employee the AutoCyte Disclosure Schedule shall list all such loan arrangements, whether or consultant not in writing, involving at least $1,000), and contracts and other agreements for the payment of the Company under fees or other consideration to any entity in which the Company AutoCyte has any obligations as of the date hereofan interest;
(cb) any agreement contracts and other agreements with any labor union or association representing any employee of the CompanyAutoCyte or otherwise providing for any form of collective bargaining;
(dc) any agreement contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation escalation, renegotiation or redetermination clause or that obligates the Company obligate AutoCyte to purchase all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(ed) any agreement contracts and other agreements for the sale of any of the assets or properties of the Company AutoCyte other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties;
(e) partnership or joint venture agreements;
(f) any agreement contracts with agents or foreign representatives regarding the sales or marketing of surety, guarantee AutoCyte's services or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000products;
(g) contracts or other agreements under which AutoCyte agrees to act as surety or guarantor for or to indemnify any agreement which contains covenants of party (other than required indemnification provisions in customer contracts) or to share the Company not to compete in any line of business, in any geographic area or with any Person or covenants tax liability of any other Person not to compete with the Company or in any line of business of the Companyparty;
(h) contracts, options, outstanding purchase orders and other agreements for the purchase of any agreement material asset, tangible or intangible;
(i) contracts and other agreements with customers customers, suppliers or suppliers other parties for the sharing of fees, the rebating of charges or other similar arrangements;
(i) any agreement obligating arrangements other than such contracts entered into in the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clausenormal course of business;
(j) contracts and other agreements containing obligations or liabilities of any agreement kind to holders of the securities of AutoCyte as such (including, without limitation, an obligation to register any of such securities under any federal or state securities laws) and contracts obligating AutoCyte to issue or repurchase any AutoCyte securities;
(k) contracts and other agreements containing covenants of AutoCyte not to compete in any line of business or with any person or entity or covenants of any other person or entity not to compete with AutoCyte in any line of business;
(l) contracts and other agreements relating to the acquisition by the Company AutoCyte of any operating business or the capital stock of any other Personperson or entity;
(km) any agreement contracts and other agreements requiring the payment to any Person party of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business);
(l) any agreements, notes or other instruments relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations);
(m) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible propertyfee;
(n) contracts, indentures, mortgages, promissory notes, debentures loan agreements, guaranties, security agreements, pledge agreements, and other agreements and instruments relating to the borrowing or lending of money or securing any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person such liability in connection with the Mergeran amount greater than $50,000;
(o) any stock option agreement, restricted stock agreement, employment agreement or severance agreement, phantom stock plan series of related agreements requiring aggregate payments by or bonus, incentive or similar agreement, arrangement or understandingto AutoCyte of more than $50,000;
(p) any agreement involving the assignmentcontracts under which AutoCyte will acquire or has acquired ownership of, transferor license to, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;intangible property, including software other than commercially available end-user licenses; and
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(r) any other material contract or other agreement whether or not made in the ordinary course of business, the absence of which would have an AutoCyte Material Adverse Effect. True Merger Sub is not a party to any contract or agreement other than the agreement contemplated hereby. There have been delivered or made available to NeoPath true and complete copies of all Material Contracts of the contracts and other agreements (and all amendments, waivers or other modifications thereto) have been furnished or made available to set forth in Section 3.14 of the BuyerAutoCyte Disclosure Schedule. Each Material Contract is All of such contracts and other agreements are valid, subsisting, in full force and effect, binding upon the Company andAutoCyte, and to the Company's knowledgebest knowledge of AutoCyte, binding upon the other parties thereto in accordance with their terms, and the Company is not in default under any of them, nor, to the Company's knowledge, is any other party to any Material Contract in default thereunder, nor, to the Company's knowledge, does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.parties
Appears in 1 contract
Sources: Merger Agreement (Autocyte Inc)
Contracts and Other Agreements. Section 3.12 (a) SECTION 2.10 of the Company Disclosure Schedule sets forth a list of the following contracts and other agreements to which the Company or any Company Subsidiary is a party or by or to which any of its assets, they or their assets or properties or securities are bound or subject (each, a "Material Contract"):subject:
(ai) any agreement (A) involving research, development or series the license of related agreements requiring aggregate payments Proprietary Rights (as defined in SECTION 2.12), (B) granting a right of first refusal, or right of first offer or comparable right with respect to Proprietary Rights, (C) relating to a joint venture, partnership or other arrangement involving a sharing of profits, losses, costs or liabilities with another person or entity, (D) providing for the payment or receipt by or to the Company or a Company Subsidiary of milestone payments or royalties, (E) containing a "most favored nation" pricing or terms clause, or (F) that individually requires aggregate expenditures by the Company and/or any Company Subsidiary in any one year of more than $50,00025,000;
(bii) any indenture, trust agreement, loan agreement or note that involves or evidences outstanding indebtedness, obligations or liabilities for borrowed money;
(iii) any agreement with of surety, guarantee or for the benefit of any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereofindemnification;
(civ) any agreement that limits or restricts the Company, any Company Subsidiary or any of their affiliates or successors in competing or engaging in any line of business, in any therapeutic area, in any geographic area or with any labor union or association representing any employee of the Companyperson;
(dv) any interest rate, equity or other swap or derivative instrument;
(vi) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates obligating the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium)register securities under the Securities Act;
(evii) any agreement for the sale of any of the securities, assets or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such securities, assets or properties;
(fviii) any agreement in which the Company is the purchaser of suretygoods or services and that requires less than 30 days' notice to be cancelled by the Company or an assignee of the Company to avoid incurring a liability, guarantee premium or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000penalty;
(g) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(i) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(jix) any agreement relating to the acquisition by the Company of any operating business or the capital stock of any other Personperson;
(kx) any agreement requiring the payment to any Person person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business)business or providing for sharing of fees, rebating of charges, or similar arrangements;
(l) any agreements, notes or other instruments relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations);
(m) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;
(nxi) any agreement with a change of control provision any current or otherwise requiring any consentformer officer, approvaldirector, waiver stockholder, employee, consultant, agent or other action by representative of the Company, including any Person agreement for the payment of fees or other consideration to any entity in connection with which any officer or director of the Merger;Company has an interest; or
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(rxii) any other material agreement whether or not made in the ordinary course of business. True All of the contracts and complete copies other agreements required to be set forth in SECTION 2.10 of all Material Contracts (and all amendments, waivers or other modifications thereto) have been furnished or made available to the Buyer. Each Material Contract is Company Disclosure Schedule are valid, subsisting, in full force and effect, binding upon the Company or the applicable Company Subsidiary and, to the knowledge of the Company's knowledge, binding upon the other parties thereto in accordance with their terms, and the Company is and the Company Subsidiaries have paid in full or accrued all amounts now due from them thereunder, and have satisfied in full or provided for all of their liabilities and obligations thereunder which are presently required to be satisfied or provided for and are not in default under any of them, nor, to the knowledge of the Company's knowledge, is any other party to any Material Contract such contract or other agreement in default thereunder, nor, to the Company's knowledge, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each . True and complete copies of all of the foregoing cases, such defaults as would not, either individually contracts and other agreements (and all written amendments or other modifications thereto) referred to in SECTION 2.10 or SECTION 2.11(a) of the aggregate, have, or be reasonably likely Company Disclosure Schedule have been provided previously to have, a Material Adverse EffectParent.
Appears in 1 contract
Sources: Merger Agreement (Genzyme Corp)
Contracts and Other Agreements. Section 3.12 2.14 of the PTI Disclosure Schedule sets forth a correct and complete list all of the following contracts and other agreements to which the Company PTI, any Subsidiary or PTI Asia is a party or by or to which any of it or its assets, assets or properties or securities are bound or subject (eachbut not including any Agreements to which other PTI Affiliates may be a party to or bound by unless PTI, any Subsidiary or PTI Asia is also a "Material Contract"party or bound):
(a) any agreement or series of related contracts and other agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder shareholder, employee, consultant, agent or other representative of PTI or any securityPTI Affiliate, employee and contracts and other agreements for the payment of fees or consultant of the Company under other consideration to any entity in which the Company PTI or any PTI Affiliate has any obligations as of the date hereofan interest;
(cb) any agreement contracts and other agreements with any labor union or association representing any employee of the CompanyPTI or any PTI Affiliate or otherwise providing for any form of collective bargaining;
(dc) any agreement contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation escalation, renegotiation or redetermination clause or that obligates the Company obligate PTI or any PTI Affiliate to purchase all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(ed) any agreement contracts and other agreements for the sale of any of the assets or properties of the Company PTI or any PTI Affiliate other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties;
(e) partnership or joint venture agreements (excluding one-time contracts where PTI works with other vendors to provide necessary products or services to a customer);
(f) contracts with agents or foreign representatives regarding the sales or distribution of products or services of PTI or any agreement PTI Affiliate;
(g) contracts or other agreements under which PTI or any PTI Affiliate agrees to act as surety or guarantor for or to indemnify any party or, except for real estate leases, to share the tax liability of suretyany party;
(h) contracts, guarantee options, outstanding purchase orders and other agreements for the purchase of any asset, tangible or indemnificationintangible, other than agreements for the purchase of items for customers or purchases less than $25,000 in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000business;
(gi) contracts and other agreements having an aggregate value of not less than $250,000 that cannot by their terms be canceled by PTI or any agreement which contains covenants PTI Affiliate and any successor or assignee of the Company not to compete in PTI or any line of businessPTI Affiliate without liability, in any geographic area premium or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Companypenalty on no less than thirty (30) days notice;
(hj) any agreement contracts and other agreements with customers customers, suppliers or suppliers other parties for the sharing of fees, the rebating of charges or other similar arrangements;
(ik) contracts and other agreements containing obligations or liabilities of any agreement obligating kind to holders of the Company securities of PTI or any PTI Affiliate as such (including, without limitation, an obligation to deliver maintenance services register any of such securities under any federal or future product enhancements or containing a "most favored nation" pricing clausestate securities laws);
(jl) contracts and other agreements containing covenants of PTI or any agreement PTI Affiliate not to compete in any line of business or with any person or entity or covenants of any other person or entity not to compete with PTI or any PTI Affiliate in any line of business, it being understood that this Section 2.14(l) shall not include confidentiality or secrecy agreements which do not incorporate any covenant not to compete;
(m) contracts and other agreements relating to the acquisition by the Company PTI or any PTI Affiliate of any operating business or the capital stock of any other Personperson or entity;
(kn) any agreement contracts and other agreements requiring the payment to any Person party of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business);
(l) any agreements, notes or other instruments relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations);
(m) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Mergerfee;
(o) contracts, indentures, mortgages, promissory notes, debentures loan agreements, guaranties, security agreements, pledge agreements, and other agreements and instruments relating to the borrowing or lending of money or securing any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understandingsuch liability;
(p) any agreement involving the assignmentor series of related agreements requiring aggregate payments by or to PTI or any PTI Affiliate of more than $25,000 on or after December 31, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property1997;
(q) contracts under which PTI or any distribution PTI Affiliate will acquire or sales representative agreement has acquired ownership of, or agreement appointing any agentlicense to, intangible property, including software but excluding pre-packaged, "off-the-shelf" software; and
(r) any other material contract or other agreement whether or not made in the ordinary course of businessbusiness that has or would be reasonably expected to have a material effect on business or prospects, condition, financial or otherwise, of PTI or any PTI Affiliate, taken as a whole, or any of the assets or properties of PTI or any PTI Affiliate. True There have been delivered or made available to SWI true and complete copies of all Material Contracts of the contracts and other agreements (and all amendments, waivers or other modifications thereto) have been furnished or made available to set forth in Section 2.14 of the BuyerPTI Disclosure Schedule. Each Material Contract is All of such contracts and other agreements are valid, subsisting, in full force and effect, binding upon the Company andPTI and each Subsidiary and PTI Asia, as applicable, and to the Company's knowledgebest knowledge of PTI, binding upon the other parties thereto in accordance with their terms, and the Company neither PTI nor any Subsidiary nor PTI Asia is not in default under any of them, nor, to the Company's knowledgebest knowledge of PTI, is any other party to any Material Contract such contract or other agreement in default thereunder, nor, to the Company's knowledge, nor does any condition exist that constitutes or with notice or lapse of time or both would constitute a default thereunder, exceptexcept where any defect, in each of the foregoing casesunenforceability, such defaults as default or condition which could cause a default would not, either individually singly or in the aggregate, have, or reasonably be reasonably likely expected to have, cause a Material Adverse Effect.
Appears in 1 contract
Contracts and Other Agreements. (a) Section 3.12 3.16 of the Seller Disclosure Schedule sets forth contains a true and complete list of all of the following contracts and other agreements to which the Company or any of its Subsidiaries is a party or by or to which any of its assets, properties or securities are their respective assets is bound or subject (each, a "“Material Contract"”):
(ai) any agreement contract with any Person containing any provision or series covenant prohibiting or materially limiting the ability of related agreements requiring aggregate payments by or to the Company or any of more than $50,000its Subsidiaries to engage in any business activity or compete with any Person in any geographical area;
(bii) any agreement contract of participation with any bank in any loan or for the benefit any sales of any current or former officer, director, holder of any security, employee or consultant assets of the Company under which or its Subsidiaries except the Company has any obligations as sale of repurchase or reverse repurchase agreements, securities or other similar financial transactions in the date hereofordinary course of business;
(ciii) any agreement with contract providing for the sale or servicing of any labor union loan or association representing any employee of the Companyother asset which constitutes a “recourse arrangement” under applicable regulation or policy promulgated by a Governmental Authority;
(div) any material partnership, joint venture or shareholders’ contract, or agreement to share profits, with any Person;
(v) any contract or agreement for the acquisition of the securities or any material portion of the assets of any other Person outside the ordinary course of business;
(vi) any contract that provides for the guarantee, surety or similar obligation of any Person’s obligations;
(vii) any contract the primary purpose of which is providing indemnification to any other Person;
(viii) any continuing contract or agreement for the purchase or sale of materials, supplies, equipmentequipment or services, merchandise involving in each case more than $250,000;
(ix) any contract or services that contains an escalation clause or that obligates agreement for capital expenditures in excess of $250,000 in the aggregate;
(x) any contract related to indebtedness of the Company to purchase all or substantially all any of its requirements Subsidiaries in excess of a particular product $250,000 (other than indebtedness owing to the Company or service from a supplier or to make periodic minimum purchases any of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premiumits wholly-owned Subsidiaries);
(exi) any securitization currency exchange, commodities, derivative, interest rate, swap, cap, floor or other interest rate risk management agreement, or other hedging arrangement or agreement for the sale of or any of the assets or properties of the Company leasing transaction required to be capitalized by GAAP other than those entered into in the ordinary course of business or for in connection with the grant to any person settlement of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or propertiestrades;
(fxii) any agreement out of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(g) any contract, commitment, agreement which contains covenants of or arrangement between the Company not to compete in and/or any line of businessits Subsidiaries, in on the one hand, and any geographic area (a) current or with former employee, officer or director of Company and/or any Person of its Subsidiaries, or covenants of any (b) Seller or Affiliate (other Person not to compete with than the Company or in any line of business its Subsidiaries), on the other hand; and
(xiii) any other contract that involves the future payment or obligation by or to the Company or any of its Subsidiaries, or gives rise to income or revenues, of more than (a) $1,000,000 over the life of the Company;
(h) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(i) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement relating to the acquisition by the Company of any operating business or the capital stock of any other Person;
(k) any agreement requiring the payment to any Person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees contract entered in the ordinary course of business);
, or (lb) any agreements, notes or other instruments relating to or evidencing outstanding indebtedness $100,000 over the life of the Company for borrowed money (including capitalized lease obligations);
(m) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(r) any other material agreement whether or not made in contract entered outside the ordinary course of business.
(b) Except as would not result in a Business Material Adverse Effect, each Material Contract and Assigned Contract to which the Company or any of its Subsidiaries or, to the extent such contract relates to services provided to the Business, any of its Affiliates, is a party is in full force and effect and constitutes a legal, valid, binding agreement, enforceable against the Company, its Subsidiary or such Affiliate, as applicable, and, to the Knowledge of Seller, each other party thereto, in accordance with its terms. True None of the Company, its Subsidiaries or its Affiliates (to the extent such contract relates to services provided to the Business), as applicable, or, to the Knowledge of Seller, any other party to each such contract is in violation or breach of, or in default under, nor has there occurred an event or condition that with the passage of time or giving of notice (or both) would constitute a default under, or permit the termination of, any such contract, except as would not result in a Business Material Adverse Effect.
(c) Seller has made available to Purchaser true and complete copies of all Material Contracts (and all amendments, waivers or other modifications thereto) have been furnished or made available to each contract listed on Section 3.16 of the Buyer. Each Material Contract is valid, subsisting, in full force and effect, binding upon the Company and, to the Company's knowledge, the other parties thereto in accordance with their terms, Seller Disclosure Schedule and the Company is not in default under any of themAssigned Contracts, nor, to the Company's knowledge, is any other party to any Material Contract in default thereunder, nor, to the Company's knowledge, does any condition exist that together with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effectall amendments and supplements thereto.
Appears in 1 contract
Contracts and Other Agreements. Section 3.12 of the The GPC Disclosure Schedule sets forth a list of the following contracts and other agreements to which the Company GPC is a party or by or to which it or any of its assets, assets or properties or securities are bound or subject (each, a "Material Contract"):subject:
(a) any agreement or series of related agreements requiring aggregate payments by or to the Company GPC of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder of any securityshareholder, employee or consultant of the Company under which the Company has any obligations as of the date hereofGPC;
(c) any agreement with any labor union or association representing any employee of the CompanyGPC;
(d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation escalation, renegotiation or redetermination clause or that obligates the Company obligate GPC to purchase all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(e) other than in the ordinary course of business, any agreement for the sale of any of the assets or properties of the Company other than in the ordinary course of business GPC or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(gh) any agreement which contains containing covenants of the Company GPC not to compete in any line of business, in any geographic area or with any Person person or covenants of any other Person person not to compete with the Company GPC or in any line of business of the CompanyGPC;
(hi) any agreement granting or restricting the right of GPC to use any Proprietary Right;
(j) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(ik) any distribution or sales representative agreement;
(l) any agreement appointing any agent of GPC;
(m) any agreement with any holder of securities of GPC as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(n) any agreement obligating the Company GPC to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(jo) any agreement relating to the acquisition by the Company GPC of any operating business or the capital stock of any other Personperson;
(kp) any agreement requiring the payment to any Person person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business);
(lq) any agreements, notes agreement or other instruments note relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations)money;
(mr) any lease, sublease or other agreement under which the Company GPC is lessor or lessee of any real property or equipment or other tangible property;
(ns) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection consent with respect to the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(rt) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all Material Contracts the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the GPC Disclosure Schedule have been furnished or made available to the BuyerHelix. Each Material Contract of such contracts is valid, subsisting, in full force and effect, binding upon the Company andGPC, and to the Company's knowledgebest knowledge of GPC, binding upon the other parties thereto in accordance with their terms, and the Company GPC is not in default under any of them, nor, to the Company's knowledgebest knowledge of GPC, is any other party to any Material Contract such contract or other agreement in default thereunder, nor, to the Company's knowledge, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.
Appears in 1 contract
Contracts and Other Agreements. Section 3.12 of the The Seller Disclosure Schedule sets forth a list of the following contracts and other agreements to which the Company Seller is a party or by or to which any of its assets, Seller or Seller's assets or properties or securities are bound or subject (each, a "Material Contract"):subject:
(a) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to the Company Seller of more than $50,000100,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder of any securitystockholder, employee or consultant of the Company under which the Company has any obligations as of the date hereofSeller;
(c) any agreement with any labor union or association representing any employee of the CompanySeller;
(d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation escalation, renegotiation or redetermination clause or that obligates the Company obligate Seller to purchase all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(e) any agreement for the sale of any of the assets or properties of the Company Seller other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(gh) any agreement which contains containing covenants of the Company Seller not to compete in any line of business, in any geographic area or with any Person person or covenants of any other Person person not to compete with the Company Seller or in any line of business of the CompanySeller;
(hi) any agreement granting or restricting the right of Seller to use any Intellectual Property (as defined hereinafter), except for any Intellectual Property that is licensed to Seller under any third party software license generally available to the public at a cost of less than $50,000;
(j) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(ik) any agreement with any holder of securities of Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating the Company Seller to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(jm) any agreement relating to the acquisition by the Company Seller of any operating business or the capital stock of any other Personperson;
(kn) any agreement requiring the payment to any Person person of a brokerage or sales commission or a finder's or referral fee in connection with the transactions contemplated by this Agreement (other than arrangements to pay commissions commission or fees to employees in the ordinary course of business);
(lo) any agreements, notes agreement or other instruments note relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations)money, other than agreements entered into in the ordinary course of business for amounts not exceeding $50,000;
(mp) any lease, sublease or other agreement under which the Company Seller is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement property with a change respect to obligations in excess of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;$50,000; and
(q) Except for agreements to provide maintenance, upgrades, bug fixes, error corrections or similar work product that are ordinary and customary for the software industry and that are related to the Seller products which have been delivered as of the date hereof, any distribution agreement that requires Seller to deliver, or sales representative agreement undertake the development of, any new product, customized product, substantial upgrade, new version or agreement appointing any agent; andsimilar work product where such delivery or development requires Seller to utilize substantial personnel or financial resources.
(r) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all Material Contracts the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Disclosure Schedule have been furnished or made available to the BuyerBEA. Each Material Contract of such contracts is valid, subsisting, in full force and effect, binding upon the Company andSeller, and to the Company's knowledgeknowledge of Seller, binding upon the other parties thereto in accordance with their terms, and the Company Seller is not in default under any of them, nor, to the Company's knowledgebest knowledge of Seller, is any other party to any Material Contract such contract or other agreement in default thereunder, nor, to the Company's knowledge, nor does any condition exist that with notice or lapse of time or both both, would constitute a default thereunder, except, in each of the foregoing casescase, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, have a Material Adverse Effectmaterial adverse effect on the business of Seller.
Appears in 1 contract
Sources: Merger Agreement (Bea Systems Inc)
Contracts and Other Agreements. Section 3.12 (a) The Company is not a party to or bound by, nor is any of its properties or assets bound or subject to, any other material contract or other agreement. All such contracts and other agreements and each of the Disclosure contracts set forth in Schedule 3.23 are valid, existing, in full force and effect, binding upon the Company or its subsidiaries, as the case may be, and to the best knowledge of the Company and the Shareholder, binding upon the other parties thereto in accordance with their terms.
(b) Schedule 3.23 sets forth a list of the following contracts and other agreements to which the Company is a party or by or to which any of its assets, assets or properties or securities are bound or subject (each, a "Material Contract"):subject:
(ai) any agreement or series of related agreements requiring that individually requires aggregate payments expenditures by or to the Company in any one year of more than $50,00010,000;
(bii) any indenture, trust agreement, loan agreement with or note that involves or evidences outstanding indebtedness, obligations or liabilities for the benefit of any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereofborrowed money;
(ciii) any agreement with any labor union lease, sublease, installment purchase or association representing any employee similar arrangement for the purchase, use or occupancy of real or personal property that individually requires aggregate expenditures by the Company, or any of its subsidiaries in any one year of more than $5,000;
(d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(e) any agreement for the sale of any of the assets or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(fiv) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(gv) any agreement, including without limitation employment agreements and bonus plans, relating to the compensation of, or obligating the Company to make payments to, (i) officers, (ii) employees, (iii) former employees, (iv) consultants, (v) advisors or (vi) directors;
(vi) any agreement which contains containing covenants of the Company not to compete in any line of business, in any geographic area or with any Person person or covenants of any other Person person not to compete with the Company or in any line of business of the Company;
(hvii) any agreement with customers any customer or suppliers for the sharing supplier that cannot be terminated without penalty in excess of fees, the rebating of charges or other similar arrangements;
(i) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement relating to the acquisition $5,000 by the Company or any of any operating business or the capital stock of any other Person;
(k) any agreement requiring the payment to any Person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business);
(l) any agreements, notes or other instruments relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations);
(m) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agentits subsidiaries within one year; and
(rviii) any other material agreement whether or not made in the ordinary course of businesssoftware license agreement. True and complete copies of all Material Contracts of the contracts and other agreements set forth in Schedule 3.23 (and all amendments, waivers or other modifications theretorequired to be set forth therein) have been furnished previously provided to ACS or made available to the Buyer. Each Material Contract is valid, subsisting, in full force and effect, binding upon the Company and, to the Company's knowledge, the other parties thereto in accordance with their terms, and the Company is not in default under any of them, nor, to the Company's knowledge, is any other party to any Material Contract in default thereunder, nor, to the Company's knowledge, does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse EffectU-Ship.
Appears in 1 contract
Sources: Merger Agreement (U Ship Inc)
Contracts and Other Agreements. Section 3.12 of the Disclosure Schedule 3.2.30 sets forth a list all of the following contracts and other agreements to which the Company or any Subsidiary is currently a party or by which either is bound or to which any a material part of its assets, their respective assets or properties or securities are bound or subject subject: (each, a "Material Contract"):
(ai) any agreement or series of related contracts and other agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former shareholder or any current officer, director, holder trustee or relative of the foregoing or other affiliate of Seller, the Company or any security, Subsidiary or with any other current employee or consultant of the Company under or with an entity in which the Company has or any obligations as of the date hereof;
Subsidiary is a controlling person; (cii) any agreement contracts and other agreements with any labor union or association representing any employee of the Company;
employee; (diii) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(e) any agreement contracts and other agreements for the sale of any of the its assets or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets of its assets; (iv) joint venture agreements; (v) contracts and other agreements under which it agrees to indemnify any party; (vi) material contracts and other material agreements , except those which can be canceled without liability, premium or properties;
penalty on not more than thirty (f30) any agreement days' notice; (vii) contracts and other agreements with customers, tenants, distributors or suppliers for the rebating of surety, guarantee charges or indemnification, other than agreements in the ordinary course of business with respect similar arrangements pursuant to obligations in an aggregate amount not which payments in excess of $50,000;
US$25,000 have been or may hereafter be made, whether by or to the Company or a Subsidiary; (gviii) any agreement which contains contracts and other agreements containing covenants of the Company or any Subsidiary not to compete in any line of business, in any geographic area business or with any Person person in any geographical area or covenants of any other Person person not to compete with the Company or any Subsidiary in any line of business of the Company;
or in any geographical area; (hix) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or contracts and other similar arrangements;
(i) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement agreements relating to the acquisition by the Company or any Subsidiary of any assets, operating business or the capital stock of any other Person;
person; (kx) contracts and other agreements relating to the management by the Company or any agreement requiring Subsidiary of any real property owned by a third party, or the payment to management by a third party of any Person of a brokerage or sales commission or a finder's or referral fee Real Property; (xi) contracts and other than arrangements to pay commissions or fees to employees agreements not entered into in the ordinary course of business);
business pursuant to which payments in excess of US$25,000 have been or may hereafter be made; (lxii) management, consulting and employment agreements; (xiii) outstanding powers of attorney empowering any agreements, notes or other instruments relating person to or evidencing outstanding indebtedness act on behalf of the Company for borrowed money or any Subsidiary; or (including capitalized lease obligations);
(m) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(rxiv) any other material agreement contracts or other agreements pursuant to which payments in excess of US$25,000 may, on a contractual basis, hereafter be made, whether by or not to the Company or a Subsidiary. There have been made in the ordinary course of business. True available to Buyer, its affiliates and their representatives true and complete copies of all Material Contracts (of the contracts and other agreements set forth on Schedule 3.2.30 or any other Schedule. Except as set forth on Schedule 3.2.30, all amendments, waivers or of such contracts and other modifications thereto) have been furnished or made available to the Buyer. Each Material Contract is valid, subsisting, in full force agreements are valid and effect, binding upon the Company or any Subsidiary, respectively, and, to the knowledge of the Company's knowledge, on the other parties thereto thereto, and are enforceable in accordance with their terms. Except as set forth on Schedule 3.2.30, and neither the Company nor any Subsidiary is not in default in any material respect under any of themsuch agreements, nor, to the knowledge of the Company's knowledge, is any other party to any Material Contract such contract or other agreement in default thereunderthereunder in any material respect, nor, to the knowledge of the Company's knowledge, does any condition exist that with notice or lapse of time or both would constitute a material default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.
Appears in 1 contract
Sources: Stock Purchase Agreement (General Inspection Laboratories Inc)
Contracts and Other Agreements. Section 3.12 of the (a) The Disclosure Schedule sets forth a true and complete list of all of the following contracts and other agreements to which the Company or any Subsidiary is a party or by which it or to which any of its assetsSubsidiary is bound (collectively, properties or securities are bound or subject (each, a the "Material ContractContracts"):
(ai) any agreement lease of personal property which involves annual expenditures or series receipts in excess of related agreements requiring aggregate payments by or to the Company of more than One Hundred Thousand Dollars ($50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereof;
(c) any agreement with any labor union or association representing any employee of the Company;
(d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium100,000.00);
(eii) each lease with respect to the Leased Real Property;
(iii) any license agreement for the sale of any of the assets or properties other agreements of the Company or any Subsidiary providing in whole or in part for the use of any patents, trademarks, trade names, service marks, copyrights, inventions, trade secrets or other than proprietary know-how or other intellectual property, whether the Company is the licensor or the licensee thereunder, and all settlements, consents or forbearance to ▇▇▇ agreements relating thereto;
(iv) any contract, arrangement or understanding not made in the ordinary course of business or for and consistent with past practice which is material to the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(f) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(g) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(hv) any note, bond, indenture, credit facility, mortgage, security agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangementsinstrument or document relating to or evidencing indebtedness for money borrowed, or a security interest or mortgage in the assets of the Company or any Subsidiary in excess of One Million Dollars ($1,000,000.00);
(ivi) any agreement obligating the Company to deliver maintenance services indemnity or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement relating to the acquisition guaranty issued by the Company of or any operating business or Subsidiary during the capital stock of any other Person;
past three (k3) any agreement requiring the payment to any Person of a brokerage or sales commission or a finder's or referral fee years (other than arrangements to pay commissions customary product warranties provided by the Company or fees to employees any Sub- sidiary in the ordinary course of business);
(lvii) any agreementscontract, notes arrangement or other instruments relating to or evidencing outstanding indebtedness understanding materially restricting the right of the Company for borrowed money (including capitalized lease obligations)or any Subsidiary to engage in any business activity or compete with any business;
(mviii) any leasecontract, sublease arrangement or other agreement under which understanding by the Company is lessor or lessee any Subsidiary to customers or distributors which aggregate in excess of Four Hundred Thousand Dollars ($400,000.00) to any real property one customer or equipment or other tangible propertydistributor;
(nix) any agreement with a change power of control provision attorney given by the Company or otherwise requiring any consentSubsidiary, approvalwhich is currently in effect, waiver to any person, firm or other action by corporation for any Person in connection with the Mergerpurpose whatsoever;
(ox) any stock option agreementcollective bargaining agreements with any unions, restricted stock agreementguilds, employment shop committees or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;collective bargaining groups; or
(pxi) any agreement involving contracts or agreements with current officers, other employees, consultants or advisors other than contracts which by their terms are cancelable by the assignment, transfer, license Company with notice or not more than sixty (whether as licensee or licensor60) or pledge or encumbrance of any Company Intellectual Property;days.
(qb) The Company has previously provided to the Buyer complete and correct copies of each written Contract (and any distribution or sales representative agreement or agreement appointing any agent; andamendments thereto).
(ri) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all Material Contracts (and all amendments, waivers or other modifications thereto) have been furnished or made available to the Buyer. Each Material Contract is valid, subsisting, in full force and effect, binding upon effect against the Company; (ii) neither the Company and, to the Company's knowledge, the other parties thereto in accordance with their terms, and the Company nor any Subsidiary is not in default under any of themContract, norand no event has occurred which constitutes, to or with the Company's knowledge, is any other party to any Material Contract in default thereunder, nor, to the Company's knowledge, does any condition exist that with notice or lapse of time or the giving of notice or both would constitute constitute, a material default thereunder, except, in each by the Company or any Subsidiary under any such Contract; and (iii) to the knowledge of the foregoing casesCompany, there are no material disputes or disagreements between the Company or its Subsidi- aries and any other party with respect to any such defaults as would notContract. Copies of the standard terms and conditions of sale, either individually delivery or lease of the Company are included in the aggregate, have, or be reasonably likely to have, a Material Adverse EffectDisclosure Schedule.
Appears in 1 contract
Contracts and Other Agreements. Section 3.12 of the Disclosure Schedule 2.14 sets forth a true and correct list of the following kinds of contracts and other agreements to which the Company is a party or by or to which any of its assets, properties or securities are bound or subject (each, a "Material Contract"):subject:
(a) any agreement or series of related agreements requiring aggregate payments by or to the Company of more than $50,0005,000 during any consecutive twelve (12) month period;
(b) any agreement with or for the benefit of any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereofhereof (other than agreements listed pursuant to Section 2.14(o));
(c) any agreement with any labor union or association representing any employee of the Company;
(d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that (i) contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or (ii) is not terminable on thirty (30) days notice or less (without penalty or premium) and requires Company to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(e) any agreement for the sale of any of the assets or properties of the Company Company, other than in the ordinary course of business business, or for the grant to any person Person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(f) any agreement of surety, guarantee or indemnification, other than indemnification provisions in customer agreements that are limited to amount paid to the Company that were entered into in the ordinary course of business with respect and that conform to obligations in an aggregate amount not in excess the Company’s standard form of $50,000customer agreement, a copy of which has been provided to the Buyer;
(g) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers for the sharing of fees, royalties or other income, the rebating of charges or other similar arrangements;
(i) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "“most favored nation" ” pricing clause;
(j) any agreement relating to the acquisition by the Company of any operating business or the capital stock of any other Person;
(k) any agreement requiring the payment to any Person of a brokerage or sales commission or a finder's ’s or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of businessbusiness pursuant to terms of commission plans that have been provided to the Buyer);
(l) any agreements, notes agreement or other instruments note relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations)money;
(m) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action consent with respect to the transactions contemplated by any Person in connection with the Mergerthis Agreement;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and;
(rq) any other material agreement whether or not made in the ordinary course of business;
(r) any agreement under which the Company entered into an exclusive arrangement of any nature with any Person; and
(s) any agreement under which the Company has been prepaid for goods or services not yet delivered by Company. True and complete copies of all Material Contracts the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on Schedule 2.14 have been furnished or made available to the Buyer. Each Material Contract of such contracts and other agreements is valid, subsisting, in full force and effect, binding upon the Company and, to the Company's knowledge’s Knowledge, the other parties thereto in accordance with their terms, and the Company is not in material breach of or material default under any of them, nor, to the Company's knowledge’s Knowledge, is any other party to any Material Contract such contract or other agreement in material breach of or material default thereunder, nor, to the Company's knowledge, does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.
Appears in 1 contract
Sources: Purchase Agreement (Banks.com, Inc.)
Contracts and Other Agreements. Section 3.12 4.14 of the Disclosure Schedule PROCEPT DISCLOSURE SCHEDULE sets forth a correct and complete list all of the following currently effective contracts:
(i) written contracts and other agreements to which the Company is a party or by or to which any of its assets, properties or securities are bound or subject (each, a "Material Contract"):
(a) any agreement or series of related agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder stockholder or employee of Procept involving more than $5,000, (provided in the case of a loan by Procept to any securitysuch person, employee the PROCEPT DISCLOSURE SCHEDULE shall list all such loan arrangements, whether or consultant not in writing, involving at least $1,000) and contracts and other agreements for the payment of the Company under fees or other consideration to any entity in which the Company Procept has any obligations as of the date hereofan interest;
(cii) any agreement contracts and other agreements with any labor union or association representing any employee of the CompanyProcept or otherwise providing for any form of collective bargaining;
(diii) any agreement contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation escalation, renegotiation or redetermination clause or that obligates the Company obligate Procept to purchase all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(eiv) any agreement contracts and other agreements for the sale of any of the assets or properties of the Company Procept other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties;
(fv) any agreement of surety, guarantee partnership or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000joint venture agreements;
(gvi) any agreement which contains covenants contracts with agents or foreign representatives regarding the sales or marketing of the Company not to compete in any line of business, in any geographic area Procept's services or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Companyproducts;
(hvii) contracts or other agreements under which Procept agrees to act as surety or guarantor for or to indemnify any agreement party (other than required indemnification provisions in customer contracts) or to share the tax liability of any party;
(viii) contracts, options, outstanding purchase orders and other agreements for the purchase of any material asset, tangible or intangible;
(ix) contracts and other agreements with customers customers, suppliers or suppliers other parties for the sharing of fees, the rebating of charges or other similar arrangementsarrangements other than such contracts entered into in the normal course of business;
(ix) contracts and other agreements containing obligations or liabilities of any agreement kind to holders of the securities of Procept as such (including, without limitation, an obligation to register any of such securities under any federal or state securities laws) and contracts obligating the Company Procept to deliver maintenance services issue or future product enhancements or containing a "most favored nation" pricing clauserepurchase any Procept securities;
(jxi) contracts and other agreements containing covenants of Procept not to compete in any agreement line of business or with any person or entity or covenants of any other person or entity not to compete with Procept in any line of business;
(xii) contracts and other agreements relating to the acquisition by the Company Procept of any operating business or the capital stock of any other Personperson or entity;
(kxiii) any agreement contracts and other agreements requiring the payment to any Person party of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business)fee;
(lxiv) any contracts, indentures, mortgages, promissory notes, debentures loan agreements, notes or guaranties, security agreements, pledge agreements, and other agreements and instruments relating to the borrowing or evidencing outstanding indebtedness lending of the Company for borrowed money (including capitalized lease obligations)or securing any such liability;
(mxv) any lease, sublease agreement or other agreement under which the Company is lessor series of related agreements requiring aggregate payments by or lessee to Procept of any real property or equipment or other tangible propertymore than $5,000;
(nxvi) any agreement with a change of control provision contracts under which Procept will acquire or otherwise requiring any consenthas acquired ownership of, approvalor license to, waiver or intangible property, including software other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agentthan commercially available end-user licenses; and
(rxvii) any other material contract or other agreement whether or not made in the ordinary course of business. True There have been delivered or made available to Pacific true and complete copies of all Material Contracts of the contracts and other agreements (and all amendments, waivers or other modifications thereto) have been furnished or made available to set forth in Section 4.14 of the BuyerPROCEPT DISCLOSURE SCHEDULE. Each Material Contract is All of such contracts and other agreements are valid, subsisting, in full force and effect, binding upon the Company andProcept, and to the Company's knowledgebest knowledge of Procept, binding upon the other parties thereto in accordance with their terms. Other than defaults which would not, and either singly or in the Company aggregate, have a Procept Material Adverse Effect, Procept is not in default under any of themsuch scheduled contracts, nor, to the Company's knowledgebest knowledge of Procept, is any other party to any Material Contract such contract or other agreement in default thereunder, nor, to the Company's knowledge, nor does any condition exist that constitutes or with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.
Appears in 1 contract
Contracts and Other Agreements. (a) Section 3.12 3.20(a) of the Advisor Disclosure Schedule sets (with paragraph references corresponding to those set forth below) contains a correct and complete list of all of the following contracts and or other agreements arrangements to which the Company Advisor is a party or by or to which any of its assetsassets is bound, properties or securities are bound or subject (each, a "Material Contract"):in each case as of the date hereof:
(ai) all contracts or other arrangements providing compensation for employment or consulting services, together with the name, position and rate of compensation of each Person party to such a contract or other arrangement and the expiration date of such contract or other arrangement;
(ii) all contracts or other arrangements with any agreement Person containing any provision or series covenant prohibiting or materially limiting the ability of the Advisor or any of its employees or other Persons who primarily provide services for it or, following the Closing, any of its Affiliates to engage in any business activity or compete with any Person;
(iii) all material partnership, joint venture, shareholders’ or other similar contracts or arrangements with any Person;
(iv) all contracts or other arrangements related agreements requiring aggregate to Indebtedness of the Advisor in excess of $25,000;
(v) all contracts or other arrangements involving payments by or to the Company Advisor of more than $50,00025,000;
(bvi) any agreement with all contracts or for the benefit of any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereof;
(c) any agreement with any labor union or association representing any employee of the Company;
(d) any agreement other arrangements for the purchase or sale of materials, supplies, equipment, merchandise software or services that contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(e) any agreement technology providing for the sale of any of the assets or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(f) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not payments in excess of $50,00025,000;
(gvii) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers for the sharing of fees, the rebating of charges all contracts or other similar arrangements;
(i) any agreement obligating the Company arrangements pursuant to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement relating to the acquisition by the Company of any operating business or the capital stock of any other Person;
(k) any agreement requiring the payment to any Person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business);
(l) any agreements, notes or other instruments relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations);
(m) any lease, sublease or other agreement under which the Company Advisor is lessor or a lessee of any real property or equipment machinery, equipment, motor vehicle, office furniture, fixtures or other tangible property;
(n) any agreement with a change personal property providing for lease payments in excess of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent$25,000 per year; and
(rviii) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all Material Contracts (and all amendments, waivers contracts or other modifications thereto) have been furnished or made available arrangements that are material to the Buyer. Each Material Contract Advisor and are not otherwise required to be included in Section 3.20(a) of the Advisor Disclosure Schedule by clauses (i) through (vii).
(b) The Advisory Agreement and each other contract set forth on Section 3.20(a) of the Advisor Disclosure Schedule is valid, subsisting, in full force and effecteffect against the Advisor and constitutes a legal, valid and binding upon agreement of the Company Advisor, enforceable against the Advisor, and, to the Company's knowledgeKnowledge of the Advisor Parent, the each other parties thereto party thereto, in accordance with their its terms, and the Company is not in default under any of them, nor, to the Company's knowledge, is any other party to any Material Contract in default thereunder, nor, to the Company's knowledge, does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing casescase, such defaults except as would notenforceability may be subject to (i) bankruptcy, either individually insolvency, reorganization, moratorium or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.other similar
Appears in 1 contract
Sources: Contribution Agreement (Dividend Capital Trust Inc)
Contracts and Other Agreements. Section 3.12 of the Disclosure Schedule sets forth a list of the following contracts (a) Contracts and other agreements agreements, whether written or oral (“Contracts”) described in this subsection, to which the Company is a party or by or to which it or any of its assets, assets or properties or securities are bound or subject (each, a "are referred to herein collectively as “Material Contract"):Contracts”:
(ai) any agreement or series of related contracts and other agreements requiring aggregate payments by or (other than at-will employment agreements) pursuant to which the Company or the other party thereto has current or future obligations or liabilities in excess of more than $50,00025,000 in any fiscal year and that are required to be disclosed on Schedule 2.26 of the Company Disclosure Schedule;
(bii) any agreement with or for the benefit of any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereof;
(c) any agreement contracts and other agreements with any labor union or association representing any employee of the Company;
(diii) any agreement contracts and other agreements for the procurement by the Company (including by purchase or sale license) of software, materials, supplies, equipment, merchandise or services services, or relating to capital expenditures, for an amount in excess of $25,000 per annum;
(iv) contracts and other agreements for the sale or license by the Company to any third party of software, materials, supplies, equipment, merchandise or services, or relating to capital expenditures, that contains involves an escalation amount or value in excess of $50,000 per annum;
(v) contracts and other agreements for (A) the sale or (B) the exclusive license of any of the assets or properties of the Company not described in clause (iv) or for the grant to any person of any option, right of first refusal, or preferential or similar right to purchase any of such assets or properties;
(vi) partnership, strategic alliance, joint development, joint marketing and joint venture agreements;
(vii) contracts and other agreements that obligates obligate the Company to purchase or license all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases or licenses of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(eviii) any agreement for the sale of any of the assets contracts and other agreements with customers, suppliers, partners or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(f) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(g) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers collaborators for the sharing of fees, the rebating of charges or other similar arrangements, including contracts containing any Most Favored Customer Provision;
(iix) any agreement obligating contracts or other agreements under which the Company agrees to deliver maintenance services indemnify any party for Tax liabilities or future product enhancements or containing a "most favored nation" pricing clauseto share the Tax liability of any party;
(jx) contracts and other agreements containing any agreement covenant limiting the freedom of the Company or any of its present or future Affiliates to (A) engage in any line of business or in any geographic territory or to compete with any Person, or which grants to any Person any exclusivity with respect to any geographic territory, any customer, or any product or service, (B) solicit for employment, hire or employ any Person, or (C) acquire property (tangible or intangible);
(xi) contracts and other agreements relating to the acquisition or disposition by the Company of any operating business or the capital stock or other securities of any other Person;
(kxii) any agreement contracts and other agreements requiring the payment to any Person person of a brokerage commission, fee or sales commission or a finder's or referral fee (royalty, other than arrangements to pay commissions or fees to employees in the ordinary course of business);
(lxiii) contracts and other agreements pursuant to which the Company may collect any Personal Information from any third parties;
(xiv) mortgages, indentures, loan or credit agreements, factoring agreements, promissory notes or and other agreements and instruments relating to the borrowing of money or evidencing outstanding indebtedness financing or sale of the Company for borrowed money (including capitalized lease obligations)receivables;
(mxv) any leaseresearch, sublease development (whether contracted or shared), and manufacturing agreements;
(xvi) reseller or distributorship agreements, original equipment manufacturer (OEM) agreements, or systems integrator agreements;
(xvii) leases, financing agreements, subleases or other agreement agreements under which the Company is lessor or lessee of any real property or equipment or other tangible personal property;
(nxviii) any agreement with a change licenses, sublicenses and other agreements required to be listed in Schedule 2.16(c) of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agentDisclosure Schedule; and
(rxix) any other material agreement whether or not contracts with Governmental Entities.
(b) Schedule 2.13 of the Company Disclosure Schedule contains a true, correct and complete list of all Material Contracts numbered as appropriate under subsection (a) hereof. The Company has made in available to the ordinary course of business. True Buyer true and complete copies of all Material Contracts (and all amendments, waivers amendments or other modifications thereto) have been furnished or made available to thereto or, in the Buyercase of oral Material Contracts, complete and accurate descriptions. Each All of the Material Contract is Contracts are valid, subsisting, in full force and effect, and binding upon the Company and, to the Knowledge of the Company's knowledge, on the other parties thereto in accordance with their terms, and party(ies) thereto. No written notice of termination or amendment of any Material Contract has been given to the Company by any other party thereto. Neither the Company nor, to the Knowledge of the Company, any other party thereto, is not in default under any of themMaterial Contract, norand, to the Company's knowledge, is any other party to any Material Contract in default thereunder, nor, to Knowledge of the Company's knowledge, no event has occurred nor does any condition exist that with notice or lapse of time or both would constitute a default by the Company or any such other party thereunder.
(c) There is no Contract or Order to which the Company is a party, exceptsubject or otherwise bound, that would reasonably be expected to prohibit, impair or otherwise limit: (a) any business practice of the Company or any of its present Affiliates or Buyer; (b) any acquisition of property (tangible or intangible) by the Company or any of its present Affiliates or Buyer; (c) the conduct of business by the Company; or (d) the freedom of the Company or any of its present Affiliates or Buyer to engage in any line of business or to compete or do business with any Person, in each case whether arising as a result of a change in control of the foregoing casesCompany or any of its present Affiliates or Buyer or otherwise. Without limiting the generality of the foregoing, such defaults as would notthe Company has not (x) entered into any Contract under which the Company or any of its present Affiliates or Buyer is restricted from selling, either individually licensing, manufacturing or otherwise distributing any of its technology or products or from providing services to customers or potential customers or any class of customers, in any geographic area, during any period of time, or in any segment of the aggregatemarket, have(y) granted any Person exclusive rights to sell, license, manufacture or be reasonably likely otherwise distribute any of the Company’s or any of its present Affiliates’ or Buyer’s technology or products in any geographic area or with respect to haveany customers or potential customers or any class of customers during any period of time or in any segment of the market or (z) entered into any Contract that will bind the Buyer or any of its Affiliates with respect to the Buyer’s or the Buyer’s Affiliates’ own customers, a Material Adverse Effectproducts or services.
Appears in 1 contract
Sources: Exhibit Agreement (PTC Inc.)
Contracts and Other Agreements. Section (a) Schedule 3.12 of the Disclosure Schedule sets forth a list of the following all written or oral contracts ------------- and other agreements to which the Company a Selling Party is a party or by or to which it is or any of its assets, properties or securities assets are bound or subject subject, including without limitation: (each, a "Material Contract"):
(ai) any agreement or series of related contracts and agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereof;
(c) any agreement with any labor union or association representing any employee of the Company;
employee; (dii) any agreement contracts and agreements (including barter arrangements) for the purchase or sale of materials, supplies, equipmentmerchandise, merchandise equipment or services that contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice services; (without penalty or premium);
(eiii) any agreement contracts and agreements for the sale of any of the assets or properties of the Company other than Business (except for the sale of medical equipment in the ordinary course of business business) or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such of the assets or properties;
properties relating to the Business; (fiv) joint marketing, joint venture and partnership agreements; (v) contracts and agreements under which a Selling Party agrees to indemnify any agreement of surety, guarantee party or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(g) share any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants tax liability of any party; (vi) contracts and other Person not to compete agreements with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
; (ivii) contracts and agreements containing covenants of a Selling Party not to compete in any agreement obligating the Company line of business or with any person in any geographical area or covenants of any other person not to deliver maintenance services compete with a Selling Party in any line of business or future product enhancements or containing a "most favored nation" pricing clause;
in any geographical area; (jviii) any agreement contracts and other agreements relating to the acquisition by the Company a Selling Party of any operating business or the capital stock of or other interest in any other Person;
person; (kix) options for the purchase of any agreement asset, tangible or intangible; (x) contracts and agreements requiring the payment to any Person person of a brokerage royalty, override or sales similar commission or fee; (xi) contracts and agreements relating to the borrowing of money; (xii) any guaranty, performance or completion bond or surety contract or agreement; (xiii) contracts and agreements for the development, display or promotion of any products or services; (xiv) contracts and agreements for the employment for any period of time whatsoever or in regard to the employment, or restricting the employment, of any salaried employee of a finder's or referral fee (other than arrangements to pay commissions or fees to employees Selling Party employed in the ordinary course Business; (xv) outstanding powers of businessattorney executed on behalf of a Selling Party; (xvi) third-party payor agreements (including provider agreements for the Programs);
(l) any , managed care agreements, notes or other instruments and agreements relating to or evidencing outstanding indebtedness the provision of the Company for borrowed money health care, pharmaceuticals, goods and services and (including capitalized lease obligations);
(m) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(rxvii) any other material contract or agreement whether or not made in the ordinary course of business. True .
(b) There have been delivered to Purchaser true and complete copies of all Material Contracts (of the contracts and all amendmentsagreements set forth or required to be set forth on Schedules 3.8, waivers 3.11 and 3.12 or on any other Schedule, and there are no other ---------------------------- material terms of such contracts or other modifications thereto) have been furnished agreements except as set forth on such copies. Except as disclosed on Schedule 3.12 or made available on the respective Schedule to the Buyer. Each Material Contract is ------------- which it pertains, all of such contracts and other agreements are valid, subsisting, in full force and effect, binding upon the Company Selling Parties, and, to the Company's Selling Parties' knowledge, the other parties thereto and enforceable against the Selling Parties in accordance with their respective terms, ; and the Company is Selling Parties have satisfied in all material liabilities and obligations thereunder through the date hereof, are not in default in any material respect under any of them, nor, to the Company's Selling Parties' knowledge, is does any condition exist which, with notice or lapse of time or both, would constitute such a material default. To the Selling Parties' knowledge, no other party to any Material Contract such contract or other agreement is in default thereunder, nor, to the Company's Selling Parties' knowledge, does any condition exist that which, with notice or lapse of time or both both, would constitute such a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.
Appears in 1 contract
Sources: Stock Purchase Agreement (Home Health Corp of America Inc \Pa\)
Contracts and Other Agreements. Section 3.12 of the Disclosure Schedule SCHEDULE 3.11 sets forth a list all of the following currently effective contracts and other agreements to which the Company Control is a party or by or to which any of it or its assets, assets or properties or securities are bound or subject (each, a "Material Contract"and under which Control has current or future rights or obligations):
(a) any agreement or series of related contracts and other agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder stockholder, employee, consultant, agent or other representative of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereofControl;
(cb) any agreement contracts and other agreements with any labor union or association representing any employee of the CompanyControl;
(dc) any agreement contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation escalation, renegotiation or redetermination clause or that obligates the Company obligate Control to purchase all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(ed) any agreement contracts and other agreements for the sale of any of the assets or properties of the Company Control other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties;
(e) partnership or joint venture agreements;
(f) contracts or other agreements under which Control agrees to indemnify any agreement party for tax liabilities or to share the tax liability of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000any party;
(g) any agreement contracts and other agreements in which contains covenants Control is the purchaser of the Company not to compete goods or services and calling for an aggregate purchase price or payments in any line one year of businessmore than $10,000 in any one case (or in the aggregate, in any geographic area or with any Person or covenants the case of any related series of contracts and other Person not to compete with the Company or in any line of business of the Companyagreements);
(h) contracts and other agreements in which Control is the purchaser of goods or services and that require more than thirty days notice to be cancelled by Control or an assignee of Control (in order to avoid incurring any agreement liability, premium or penalty);
(i) contracts and other agreements with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(ij) contracts and other agreements containing obligations or liabilities of any agreement obligating kind to holders of the Company securities of Control as such (including, without limitation, an obligation to deliver maintenance services register any of such securities under any federal or future product enhancements or containing a "most favored nation" pricing clausestate securities laws);
(jk) contracts and other agreements containing covenants of Control not to compete in any agreement line of business or with any person or covenants of any other person not to compete with Control or in any line of business;
(l) contracts and other agreements relating to the acquisition by the Company Control of any operating business or the capital stock of any other Personperson;
(km) options for the purchase of any agreement asset, tangible or intangible;
(n) contracts and other agreements requiring the payment to any Person person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business);
(lo) any agreements, notes contracts and other agreements for the payment of fees or other instruments relating consideration to any officer or evidencing outstanding indebtedness director of Control or to any other entity in which any of the Company for borrowed money (including capitalized lease obligations)foregoing has an interest;
(mp) any leasecontracts and other agreements relating to the borrowing of money;
(q) distributorship or licensing agreements;
(r) contracts with purchasers of services from Control;
(s) leases, sublease subleases or other agreement agreements under which the Company Control is lessor or lessee of any real property or equipment or other tangible property;; or
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(rt) any other material contract or agreement whether or not made in the ordinary course of business. True There have been made available to MAXIMUS true and complete copies of all Material Contracts of the contracts and other agreements (and all written amendments, waivers or other modifications thereto) have been furnished or made available to the Buyerset forth on SCHEDULE 3.11. Each Material Contract is valid, subsisting, in full force All of such contracts and effect, other agreements are valid and binding upon the Company and, to the Company's knowledge, the other parties thereto Control in accordance with their terms, and the Company Control is not in default under any material term of them, nor, to the Company's knowledgebest knowledge of Control and the Stockholders, is any other party to any Material Contract such contract or other agreement in default thereunder, nor, to the Company's knowledgebest knowledge of Control and the Stockholders, does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (Maximus Inc)
Contracts and Other Agreements. Section 3.12 3.9 of the Company Disclosure Schedule sets forth a list of the following contracts and other agreements to which the Company is a party or by or to which any of its assets, the Company or the Company's assets or properties or securities are bound or subject (each, a "Material Contract"):subject:
(a) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to the Company of more than $50,000;25,000
(b) any agreement with or for the benefit of any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereof;
(c) any agreement with any labor union or association representing any employee of the Company;
(dc) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation escalation, renegotiation or redetermination clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(ed) any agreement for the sale of any of the assets or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(e) any partnership, joint venture or similar agreement;
(f) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,00025,000;
(g) any agreement which contains containing covenants of the Company not to compete in any line of business, in any geographic area or with any Person person or covenants of any other Person person not to compete with the Company or in any line of business of the Company;
(h) any license relating to Intellectual Property and any other agreement granting or restricting the right of the Company to use any Intellectual Property (as defined hereinafter);
(i) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(ij) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(jk) any agreement relating to the acquisition by the Company of any operating business or the capital stock of any other Personperson;
(kl) any agreement requiring the payment to any Person person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions commission or fees to employees in the ordinary course of business);
(lm) any agreements, notes agreement or other instruments note relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations)money;
(mn) The Lease and any other lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement property with a change respect to obligations in excess of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent$25,000; and
(ro) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all Material Contracts the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on Section 3.9 of the Company Disclosure Schedule have been furnished or made available to the BuyerPurchaser. Each Material Contract of such contracts is valid, subsisting, in full force and effect, binding upon the Company andCompany, and to the best knowledge of the Company's knowledge, binding upon the other parties thereto in accordance with their terms, and the Company is not in default under any of them, nor, to the best knowledge of the Company's knowledge, is any other party to any Material Contract such contract or other agreement in default thereunder, nor, to the Company's knowledge, nor does any condition exist that with notice or lapse of time or both both, would constitute a default thereunder, except, in each of the foregoing casescase, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, have a Material Adverse Effectmaterial adverse effect on the Business of the Company.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Uniphase Corp /Ca/)
Contracts and Other Agreements. Section 3.12 of the Disclosure Schedule 4.13 sets forth a list all of the following contracts and other agreements (other than the Leases) to which the Company is a party or by which the Company or to which any of its assets, properties or securities assets are bound or subject (each, a "Material Contract"):
(a) any agreement or series of related agreements requiring aggregate payments by or to the Company of and which involve more than $50,000;
10,000.00: (bi) any agreement with or for the benefit of any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereof;
(c) any agreement contracts and other agreements with any labor union or association representing any employee employees; (ii) contracts not entered into in the ordinary course of the Company;
business; (diii) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(e) any agreement contracts and other agreements for the sale of any of the assets or the Company's properties of the Company (other than contracts and other agreements for the sale of inventory in the ordinary course of business business) or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
; (fiv) joint venture and partnership agreements; (v) contracts or other agreements under which the Company has agreed to indemnify any agreement party or to share any liability of suretyany party including, guarantee or indemnificationwithout limitation, liability with respect to taxes, other than contracts and other agreements regarding the sale of goods in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
business; (gvi) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any contracts and other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement agreements with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
; (ivii) any agreement obligating contracts and other agreements containing covenants of the Company not to deliver maintenance services compete in any line of business or future product enhancements or containing a "most favored nation" pricing clause;
with any person in any geographical area; (jviii) any agreement contracts and other agreements relating to the acquisition by the Company of any operating business or the capital stock of any other Person;
person; (kix) options for the sale or purchase of any agreement stock, note or other security; (x) contracts and other agreements requiring the payment to any Person person of a brokerage royalty, override or sales commission or a finder's or referral fee similar commission; (xi) contracts and other than arrangements to pay commissions or fees to employees in the ordinary course of business);
(l) any agreements, notes or other instruments agreements relating to the borrowing of money or evidencing outstanding indebtedness the incurrence of indebtedness; (xii) guarantees, performance or completion bonds and surety agreements; (xiii) contracts of agency, representation, distribution or franchise; (xiv) contracts for the Company employment for borrowed money (including capitalized lease obligations);
(m) any leaseperiod of time whatsoever, sublease or other agreement under which restricting the Company is lessor or lessee employment, of any real property or equipment or salaried employee; and (xv) contracts and other tangible property;
(n) any agreement agreements with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with term longer than one (1) year. There have been delivered to the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(r) any other material agreement whether or not made in the ordinary course of business. True and complete Purchaser copies of all Material Contracts (of the contracts and other agreements set forth on Schedule 4.13 or, if unwritten, accurate summaries of all amendmentsof the material terms thereof, waivers and there are no other material terms of such contracts or other modifications thereto) have been furnished or made available to the Buyeragreements except as set forth on such copies and/or summaries. Each Material Contract is Except as disclosed on Schedule 4.13 all of such contracts and other agreements are valid, subsisting, in full force and effect, effect and binding upon the Company and, to the Company's knowledge, the other parties thereto in accordance with their terms, ; and the Company is not in material default under any of them. Except as separately identified on Schedule 4.13, nor, to no approval or consent of any person is needed in order that the Company's knowledge, is any contracts and other party to any Material Contract agreements set forth on Schedule 4.13 continue in default thereunder, nor, to full force and effect following the Company's knowledge, does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each consummation of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effecttransactions contemplated by this Agreement.
Appears in 1 contract
Sources: Stock Purchase and Redemption Agreement (Owosso Corp)
Contracts and Other Agreements. Section 3.12 of the Disclosure Schedule 3.11 sets forth a list all of the following contracts and other agreements types of Contracts to which the Company or any of its Subsidiaries is a party or by or to which the Company or any of its Subsidiaries, or their respective assets, properties or securities are businesses, including the Business, is bound or subject (eachcollectively, a the "Material ContractContracts"):
(a) any agreement all employment agreements and commitments, all consulting or series of related severance agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement arrangements and all other contracts or agreements, including indemnification agreements, with or for the benefit of any current or former officer, director, holder of any securityemployee, employee or consultant consultant, agent, other representative of the Company under which or any of its Subsidiaries or with any Affiliate of the Company has or any obligations as of the date hereof;its Subsidiaries.
(cb) any agreement contracts and other agreements with any labor union or association representing any employee of the Companyemployee;
(dc) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(e) any agreement contracts and other agreements for the sale of any of the its assets or properties of the Company other than in the ordinary course of business or for the grant to any person Person of any options, rights of first refusal, or preferential or similar rights to purchase any such of its assets or properties, in each case in an amount exceeding $25,000;
(fd) any agreement of surety, guarantee joint venture and partnership agreements or indemnification, contracts and other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(g) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(i) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement relating to the acquisition by the Company or any of its Subsidiaries of any operating business or the capital stock of any other Person;
(e) all capitalized leases, pledges, conditional sale or title retention agreements involving the payment of more than $100,000;
(f) any take or pay or requirements contracts or agreements or any other contracts or agreements requiring the Company or any of its Subsidiaries to pay regardless of whether products or services are received;
(g) contracts and other agreements not cancelable without penalty by the Company or any of its Subsidiaries party thereto on sixty (60) or fewer days' notice calling for an aggregate purchase price or payments to or from the Company or any of its Subsidiaries, as the case may be, in any one year of more than $25,000 in any one case (or in the aggregate, in the case of any related series of contracts and other agreements);
(h) contracts and other agreements with clients, customers or any other Person for the sharing of fees, the rebating of charges or purchase price or other similar arrangements;
(i) contracts and other agreements containing covenants pertaining to the right to compete or not compete in any line of business or similarly restricting the ability to conduct business with any Person or in any geographical area;
(j) all agreements relating to the consignment or lease of personal property (whether the Company or any of its Subsidiaries is lessee, sublessee, lessor, or sublessor), other than such agreements that provide for annual payments of less than $25,000;
(k) any agreement requiring the payment to any Person all licences and franchise agreements involving an amount in excess of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business)$25,000;
(l) any agreementsall mortgages, notes or indentures, notes, bonds, letter of credit and other instruments agreements relating to the borrowing of money, creation of Liens, any indemnity, or evidencing outstanding indebtedness the guarantee of the payment of liabilities or performance of obligations to or by the Company for borrowed money (including capitalized lease obligations)or any of its Subsidiaries, to or by any other Person;
(m) any leasestockholder agreement, sublease registration rights agreement or any arrangement relating to or affecting the ownership of the common stock or other agreement under which equity interests of the Company is lessor or lessee any of any real property or equipment or other tangible property;its Subsidiaries; and
(n) any other contract and other agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(r) any other material agreement whether or not made in outside the ordinary course of businessbusiness relating to any one or more of the Company or any of its Subsidiaries and involving an amount in excess of $25,000. True and complete copies of all of the Material Contracts (and all amendments, waivers or other modifications thereto) have been furnished or made available delivered to the Buyer. Each Except as disclosed on Schedule 3.11, all of the Material Contract is valid, subsisting, in full force and effect, Contracts are to the Seller's Knowledge binding upon the Company and, to the Company's knowledge, the other parties thereto in accordance with their terms, terms and the Company or relevant Subsidiary has satisfied in full or provided for all of its liabilities and obligations thereunder requiring performance prior to the date hereof in all material respects, is not in default under any of themsuch Material Contract, nor, nor to the CompanySeller's knowledge, is any other party to any Material Contract in default thereunder, nor, to the Company's knowledge, Knowledge does any condition exist that with notice or lapse of time or both would constitute such a default. To the Seller's Knowledge, no other party to any such Material Contract is in default thereunder, except, in each nor does any condition exist that with notice or lapse of time or both would constitute such a default. None of the foregoing casesother parties to any such Material Contracts has given notice to the Company or relevant Subsidiary that it intends to terminate or materially alter the provisions of such Material Contract. Except as separately identified on Schedule 3.11, such defaults as would not, either individually no approval or consent of any Person is required under any Material Contract in connection with consummation of the aggregate, have, or be reasonably likely to have, a Material Adverse Effecttransactions contemplated by this Agreement.
Appears in 1 contract
Contracts and Other Agreements. (a) Section 3.12 3.11 of the Seller Disclosure Schedule sets forth contains a true and complete list of all of the following contracts and agreements (each, a “Material Contract”):
(i) the rights under which are included in the Assets;
(ii) the liabilities and obligations under which are included in the Assumed Liabilities;
(iii) comprising Organizational Documents of any of the Subject Entities, LIHTC Funds or their respective Subsidiaries or otherwise provides for or governs any joint venture or partnership involving the sharing of the revenue, income, earning or profits of any entity with any Person other agreements than a Subject Entity or a LIHTC Fund or any of their respective Subsidiaries;
(iv) which are material to which the Company is a party or by or Business and to which any of its assetsthe Subject Entities, properties LIHTC Funds or securities are bound their respective Subsidiaries is a party, including any contract or subject (each, a "Material Contract"):
(a) any agreement or series of related agreements requiring aggregate payments by or providing for bridge loan financing to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereofSubject Entities, LIHTC Funds or their respective Subsidiaries;
(cv) to which any agreement with any labor union or association representing any employee of the Company;
(d) Subject Entities, LIHTC Funds or their respective Subsidiaries, on the one hand, and any agreement for the purchase Seller Party or sale of materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company to purchase all or substantially all any of its requirements Affiliates (other than any of the Subject Entities, LIHTC Funds or their respective Subsidiaries), on the other hand, is a particular product party and which will not be terminated at or service from a supplier prior to the First Closing (or to make periodic minimum purchases in the case of a particular product or service from a supplierSecond Closing Interests, which is not terminable on not more than 30 days notice (without penalty or premiumthe Second Closing);
(evi) which contain covenants not to compete, engage in any agreement for line or type of business or conduct business in any geographical area or with any Person that are, or from and after the sale First Closing (or in the case of Second Closing Interests, the Second Closing) will be, applicable to or binding on the Business or any Subject Entity, LIHTC Fund or any of the assets their respective Subsidiaries;
(vii) is currently in effect with any current or properties former officer (or individual in a similar position), director (or individual in a similar position) or employee of the Company Business or any Subject Entity, LIHTC Fund or any of their respective Subsidiaries;
(viii) provides for any Subject Entity, LIHTC Fund or any of their respective Subsidiaries to acquire or dispose of assets other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or propertiesand consistent with past practice;
(fix) any agreement of surety, guarantee or indemnification, other than agreements in which is the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;Real Property Lease; or
(gx) any agreement which contains covenants of are otherwise material to the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;Business.
(hb) any agreement with customers or suppliers for the sharing of feesExcept as not would be, the rebating of charges or other similar arrangements;
(i) any agreement obligating the Company and would not reasonably be likely to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement relating be, materially adverse to the acquisition by the Company of any operating business or the capital stock of any other Person;
(k) any agreement requiring the payment to any Person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business);
(l) any agreementsBusiness, notes or other instruments relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations);
(m) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(r) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all Material Contracts (and all amendments, waivers or other modifications thereto) have been furnished or made available to the Buyer. Each each Material Contract is valid, subsisting, in full force and effect and constitutes a legal, valid, binding agreement, enforceable, in accordance with its terms, subject to applicable bankruptcy, insolvency or other similar laws, now or hereinafter in effect, binding upon affecting creditors’ rights generally or general principles of equity. The Subject Entities, LIHTC Funds and their respective Subsidiaries, and the Company Seller Parties and their respective Affiliates (other than the Subject Entities, LIHTC Funds or their respective Subsidiaries), as applicable, have performed all material obligations required to be performed by each of them to date under the Material Contracts, and none of them is (with or without the lapse of time or the giving of notice, or both) in breach or default in any material respect thereunder and, to the Company's knowledgeknowledge of the Seller Parties, the other parties thereto in accordance with their terms, and the Company is not in default under any of them, nor, to the Company's knowledge, is any no other party to any Material Contract in default thereunder, nor, to is (with or without the Company's knowledge, does any condition exist that with notice or lapse of time or both would constitute a the giving of notice, or both) in breach or default in any material respect thereunder.
(c) The Sellers have made available to Purchaser true and complete copies (or if none exist, exceptreasonably detailed, in complete and accurate written descriptions) of each Material Contract, together with all amendments, modifications and supplements thereto.
(d) To the knowledge of the foregoing casesSeller Parties, such defaults as would not, either individually no LIHTC Fund or any of its Subsidiaries is in breach or default in any material respect of any provision of (i) its or any other Person’s Organizational Documents or (ii) any contract or agreement to which any LIHTC Fund or any of its Subsidiaries is a party or is otherwise bound which governs or relates to the aggregate, have, Indebtedness of any LIHTC Fund or be reasonably likely to have, a Material Adverse Effectany of its Subsidiaries.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Municipal Mortgage & Equity LLC)
Contracts and Other Agreements. Section 3.12 of the The Seller Disclosure Schedule sets forth a list of the following contracts and other agreements to which the Company Seller is a party or by or to which any of the Seller or its assets, assets or properties or securities are bound or subject (each, a "Material Contract"):subject:
(a) any agreement or series of related agreements requiring aggregate payments by or to the Company Seller of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder of any securityshareholder, employee or consultant of the Company under which the Company has any obligations as of the date hereofSeller;
(c) any agreement with any labor union or association representing any employee of the CompanySeller;
(d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation escalation, renegotiation or redetermination clause or that obligates obligate the Company Seller to purchase all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(e) any agreement for the sale of any of the assets or properties of the Company Seller other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,00010,000 and the endorsement of checks for deposit in the ordinary course of business;
(gh) any agreement which contains containing covenants of the Company Seller not to compete in any line of business, in any geographic area or with any Person person or covenants of any other Person person not to compete with the Company Seller or in any line of business of the CompanySeller;
(hi) any agreement granting or restricting the right of the Seller to use any Proprietary Right (as defined in Section 2.15);
(j) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(ik) any agreement with any holder of securities of the Seller as such (including, without limitation, any agreement containing an obligation to register any of such securities under any federal or state securities laws);
(l) any agreement obligating the Company Seller to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(jm) any agreement relating to the acquisition by the Company Seller of any operating business or the capital stock of any other Personperson;
(kn) any agreement requiring the payment to any Person person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business);
(lo) any agreements, notes agreement or other instruments note relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations)money;
(mp) any lease, sublease or other agreement under which the Company Seller is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative representation agreement relating to the sale of the Seller's products by others or agreement appointing any agentthe sale by the Seller of the products of others; and
(r) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all Material Contracts the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on the Seller Disclosure Schedule have been furnished or made available to the Buyer. Each Material Contract of such contracts is valid, subsisting, in full force and effect, binding upon the Company andSeller, and to the Company's knowledgebest knowledge of the Seller, binding upon the other parties thereto in accordance with their terms, and the Company Seller is not in default under any of them, nor, to the Company's knowledgebest knowledge of the Seller, is any other party to any Material Contract such contract or other agreement in default thereunder, nor, to the Company's knowledge, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing casescase, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, have a Material Adverse Effectmaterial adverse effect on the Business of Seller.
Appears in 1 contract
Sources: Merger Agreement (Galileo Corp)
Contracts and Other Agreements. Section 3.12 3.14 of the Disclosure Schedule sets forth a list of the following contracts and other agreements to which the Company or any of its Subsidiaries is a party or by or to which any of its their respective assets, properties or securities are bound or subject (each, a "Material Contract"):and under which the Company or any of its Subsidiaries has any obligations as of the date hereof:
(a) any agreement or series of related agreements requiring aggregate payments by or to the Company or any of its Subsidiaries of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, director or holder of any security, employee or consultant of the Company or any of its Subsidiaries, other than non-disclosure or similar agreements in favor of the Company or its Subsidiaries, under which the Company or any of its Subsidiaries has any obligations as of the date hereof;
(c) any agreement with or for the benefit of any current or former employee or consultant of the Company or any of its Subsidiaries under which the Company or any of its Subsidiaries has any obligations as of the date hereof which (i) involves an obligation of the Company or any of its Subsidiaries to make future payments exceeding $75,000 per year or (ii) involves any future severance or termination payments other than accrued salary, sick, or vacation pay pursuant to the policies now in effect of the Company or any of its Subsidiaries, as the case may be;
(d) any agreement with any labor union or association representing any employee of the CompanyCompany or any of its Subsidiaries;
(de) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company or any of its Subsidiaries to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice or less (without penalty or premium)) and which involves future payments by the Company or any of its Subsidiaries of more than $75,000 in the aggregate;
(ef) any agreement for the sale of any significant portion of the assets or properties of the Company or any of its Subsidiaries, other than in the ordinary course of business business, or for the grant to any person Person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(fg) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,00025,000;
(gh) any agreement to which the Company or any of its Subsidiaries is a party and which contains covenants of the Company or any of its Subsidiaries not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or any of its Subsidiaries or in any line of business of the CompanyCompany or any of its Subsidiaries;
(hi) any agreement with customers or suppliers for the sharing of fees, royalties or other income, the rebating of charges or other similar arrangements;
(ij) any agreement obligating the Company or any of its Subsidiaries to deliver future maintenance services or future product enhancements or containing a "most favored nation" or other similar pricing adjustment clause;
(jk) any agreement relating to the acquisition by the Company of any operating business or the capital stock of any other Person;
(kl) any agreement requiring the payment to any Person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business);
(lm) any agreements, notes agreement or other instruments note relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations)money;
(mn) any lease, sublease or other agreement under which the Company or any of its Subsidiaries is lessor or lessee of any real property or equipment or other tangible propertyproperty which involves future payments by the Company in excess of $75,000 or which is not terminable on 30 days' notice;
(no) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action consent with respect to the transactions contemplated by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understandingthis Agreement;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and;
(rq) any other material agreement whether or not made in the ordinary course of business;
(r) any agreement under which the Company or any of its Subsidiaries entered into an exclusive arrangement of any nature with any Person; and
(s) any agreement under which the Company has been prepaid for goods or services not yet delivered by Company having a value in excess of $100,000. True and complete copies of all Material Contracts the contracts and other agreements (and all written amendments, waivers or other modifications thereto and written summaries of all oral amendments, waivers of other modifications thereto) set forth on Section 3.14 of the Disclosure Schedule have been furnished or made available to the BuyerBuyer or its counsel. Each Material Contract of such contracts and other agreements is valid, subsisting, in full force and effect, binding upon the Company or any of its Subsidiaries, as applicable, and, to the Company's knowledge, the other parties thereto in accordance with their terms, and neither the Company nor any of its Subsidiaries, as applicable, is not in breach of or default under any of them, nor, to the Company's knowledge, is any other party to any Material Contract such contract or other agreement in default thereunder, nor, to the Company's knowledge, does any condition exist that with notice breach of or lapse of time or both would constitute a default thereunder, except, in each case, such breaches or defaults of the foregoing casesCompany or any of its Subsidiaries, such defaults as applicable, as would not, either individually or in the aggregate, have, or not reasonably be reasonably likely expected to have, have a Company Material Adverse Effect.
Appears in 1 contract
Contracts and Other Agreements. Section 3.12 3.9 of the Company Disclosure Schedule sets forth a list of the following contracts and other agreements to which the Company is a party or by or to which any of its assets, the Company or the Company's assets or properties or securities are bound or subject (each, a "Material Contract"):subject:
(a) any agreement or series of related agreements requiring aggregate payments after the date hereof by or to the Company of more than $50,00020,000;
(b) any agreement with or for the benefit of not terminable (without penalty) at any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereoftime upon ninety (90) days' prior notice;
(c) any agreement with any labor union or association representing any employee of the Company;
(d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation escalation, renegotiation or redetermination clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases of a particular product or service from a supplier, ; or which is not terminable on not more than 30 days notice (without penalty obligates the Company to supply all or premium)substantially all of a customer's requirements;
(e) any agreement for the distribution of the Company's products, including but not limited to any agreement appointing any Person as a sales representative for the Company's products or services;
(f) any agreement (i) for sale of any of the assets or properties of the Company Company, other than sales of inventory in the ordinary course of business business, or (ii) for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(fg) any partnership, joint venture or similar agreement;
(h) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(gi) any agreement which contains containing covenants of the Company not to compete in any line of business, in any geographic area or with any Person person or covenants of any other Person person not to compete with the Company or in any line of business of the Company;
(hj) any license relating to Intellectual Property (as hereinafter defined) and any other agreement granting or restricting the right of the Company to use any Intellectual Property (other than licenses for off-the- shelf software and other customary enterprise and systems software licenses used in the Company's information technology systems);
(k) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(il) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(jm) any agreement relating to the acquisition by the Company of any operating business or the capital stock of any other Personperson;
(kn) any agreement requiring the payment to any Person person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions commission or fees to employees in the ordinary course of business);
(lo) any agreements, notes agreement or other instruments note relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations)money;
(mp) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement property with a change respect to obligations remaining after the date hereof in excess of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;$20,000; and
(q) any distribution or sales representative other agreement or agreement appointing any agent; and
(r) any other material agreement to the Company, whether or not made in the ordinary course of business. True and complete copies of all Material Contracts the contracts and other agreements (and all amendments, waivers or other modifications thereto) set forth on Section 3.9 of the Company Disclosure Schedule have been furnished or made available to the BuyerPurchaser. Each Material Contract of such contracts is valid, subsisting, in full force and effect, binding upon the Company Company, and, to the knowledge of the Company's knowledge, binding upon the other parties thereto in accordance with their terms, and the Company is not in default material breach under any of them, nor, to the knowledge of the Company's knowledge, is any other party to any Material Contract such contract or other agreement in default material breach thereunder, nor, to the Company's knowledge, nor does any condition exist that with notice or lapse of time or both both, would constitute a default material breach thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.
Appears in 1 contract
Contracts and Other Agreements. (a) Section 3.12 3.13(a) of the Disclosure Schedule sets forth a list listing of all of the following contracts and other agreements (which are currently in force) to which the Company or any such subsidiary of the Company is a party or by or to which the Company or any subsidiary of the Company or any of its assets, their respective assets or properties or securities are bound or subject (each, a "Material Contract"):subject:
(ai) any agreement or series of related contracts and other agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereof;
(c) any agreement with any labor union or association representing any employee of the Companyemployee;
(dii) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(e) any agreement contracts and other agreements for the sale or lease (other than where the Company is a lessee) of any of the assets or properties of the Company (other than in the ordinary course of business Leases) or for the grant to any person (other than to the Company) of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or propertiesproperties which provide for payments to the Company of at least $100,000;
(fiii) any agreement of surety, guarantee or indemnification, contracts and other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(g) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(i) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement relating to the acquisition by the Company of any operating business or the capital stock block of business of any other Personperson;
(kiv) contracts relating to the disposition or acquisition of any agreement requiring investment (excluding investments in the payment ordinary course of business in debt instruments) or any interest in any person outside the ordinary course of business;
(v) joint venture, partnership, management, consulting and employment agreements;
(vi) contracts or other agreements under which the Company agrees to indemnify any Person of a brokerage or sales commission or a finder's or referral fee (party, other than arrangements to pay commissions or fees to employees in the ordinary course of business, consistent with past practice, or to share a Tax liability of any party;
(vii) contracts and other agreements containing covenants restricting the Company or any of its subsidiaries from competing in any line of business or with any person in any geographical area or requiring the Company or any of its subsidiaries to engage in any line of business or containing covenants of any other person not to compete with the Company or any of its subsidiaries in any line of business or in any geographical area;
(viii) contracts and other agreements containing restrictions on the incurrence of indebtedness by the Company or any of its subsidiaries;
(ix) contracts and other agreements relating to the making of any loan or advance by the Company or any of its subsidiaries (it being understood that accounts receivable booked in the ordinary course of business do not constitute loans or advances for the purpose of this clause (ix));
(lx) any agreements, notes or other instruments relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations);
(m) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(r) any other material agreement whether or not made than trade payables incurred in the ordinary course of business. True , (a) any contract or other agreement relating to the borrowing of money by the Company or any of its subsidiaries or (b) the direct or indirect guaranty by the Company or any of its subsidiaries of any obligation of $100,000 or more, an agreement by the Company or any of its subsidiaries to service the repayment of borrowed money, or any other contingent obligations of the Company or any of its subsidiaries in respect of indebtedness, of any other person, including, (1) any agreement or arrangement relating to the maintenance of compensating balances, (2) any agreement or arrangement with respect to lines of credit, (3) any agreement to advance or supply funds to any other person, (4) any agreement to pay for property, products or services of any other person, whether or not such property, products or services are conveyed, delivered or rendered, (5) any keep-well, make-whole or maintenance of working capital or earnings or similar agreement, (6) any guaranty with respect to any lease or other similar periodic payments to be made by any such person or (7) agreements evidencing any obligations pursuant to any lease of real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases under GAAP;
(xi) all contracts or other agreements pursuant to which the Company or any of its subsidiaries licenses, leases or uses any computer software or software applications which are material to the business of the Company and its consolidated subsidiaries, taken as a whole; and
(xii) all outstanding proxies, powers of attorney, or similar delegations of authority.
(b) There have been delivered or made available to CVCA true and complete copies of all Material Contracts of the contracts and other agreements set forth in Section 3.13(a) of the Disclosure Schedule or in any other Section of the Disclosure Schedule. Each such contract and other agreement (and all amendmentsi) is, waivers or other modifications thereto) have been furnished or made available to the Buyer. Each Material Contract is valid, subsistingCompany's knowledge, in full force and effect, (ii) constitutes a legal, valid, and binding upon obligation of (1) the Company and, or the subsidiary of the Company party thereto and (2) to the Company's knowledge, the each other parties thereto party thereto, and (iii) is enforceable in accordance with their its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing, except where the failure of any such contract or agreement to be enforceable has not, individually or in the aggregate, had a Material Adverse Change. The Company has not received any notice, whether written or oral, of termination or intention to terminate from any other party to such contract or agreement. Neither the Company is not in default under or any subsidiary of them, the Company (as the case may be) nor, to the Company's knowledge, is any other party to any Material Contract such contract or agreement is in violation or breach of or default thereunder, nor, to the Company's knowledge, does under any condition exist that such contract or agreement (or with or without notice or lapse of time or both both, would constitute a be in violation or breach of or default thereunderunder any such contract or agreement), exceptwhich violation, in each of the foregoing casesbreach, such defaults as would notor default has had, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse EffectChange.
Appears in 1 contract
Contracts and Other Agreements. Section 3.12 Neither the Company nor any of its subsidiaries is a party to or bound by, and neither they nor any of their properties or assets are bound or subject to, any contract or other agreement required to be disclosed in, or filed as exhibit to, the Company SEC Reports which is not filed in the Company SEC Reports. All such contracts and other agreements and each of the contracts set forth in Schedule 3.19 of the Company Disclosure Volume are valid, existing, in full force and effect, binding upon the Company or its subsidiaries, as the case may be, and to the best knowledge of the Company, binding upon the other parties thereto in accordance with their terms, and the Company and its subsidiaries have paid in full or accrued all amounts now due from them thereunder and have satisfied in full or provided for all of their liabilities and obligations thereunder which are presently required to be satisfied or provided for, and are not in default under any of them, nor, to the best knowledge of the Company, is any other party to any such contract or other agreement in default thereunder, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder. Schedule 3.19 of the Company Disclosure Volume sets forth a list of the following contracts and other agreements to which the Company or any of its subsidiaries is a party or by or to which any of its assets, they or their assets or properties or securities are bound or subject (each, a "Material Contract"):subject:
(a) any agreement or series of related agreements requiring that individually requires aggregate payments expenditures by or to the Company or any of its subsidiaries in any one year of more than $50,00010,000;
(b) any indenture, trust agreement, loan agreement with or note that involves or evidences outstanding indebtedness, obligations or liabilities for the benefit borrowed money in excess of any current or former officer, director, holder of any security, employee or consultant of the Company under which the Company has any obligations as of the date hereof$10,000;
(c) any agreement lease, sublease, installment purchase or similar arrangement for the purchase, use or occupancy of real or personal property (i) that individually requires aggregate expenditures by the Company or any of its subsidiaries in any one year of more than $10,000, or (ii) pursuant to which the Company or any of its subsidiaries is the lessor of any real property which has rentals over $5,000 per year, together with any labor union or association representing any employee the date of termination of such leases, the name of the Companyother party and the annual rental payments required to be made under such leases;
(d) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(e) any agreement for the sale of any of the assets or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(f) any agreement of surety, guarantee or indemnification, other than agreements (i) an agreement in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,00010,000, or (ii) indemnification provisions contained in leases not otherwise required to be disclosed;
(ge) any agreement, including without limitation employment agreements and bonus plans, relating to the compensation of, or obligating the Company to make payments (whether such payments are fixed in amount or contingent upon revenues of, or opening of, a restaurant or other factors) to, (i) officers, (ii) employees, (iii) former employees, (iv) consultants, (v) advisors or (vi) any person who was promised such payments in consideration of helping the Company establish or promote restaurants;
(f) any agreement which contains containing covenants of the Company not to compete in any line of business, in any geographic area or with any Person person or covenants of any other Person person not to compete with the Company or in any line of business of the Company;
(g) any agreement granting or restricting the right of the Company or any of its subsidiaries to use a trade name, trade ▇▇▇▇, logo or the Company Proprietary Rights;
(h) any agreement with customers any customer or suppliers for supplier that cannot be terminated without penalty in excess of $10,000 by the sharing Company or any of fees, the rebating of charges or other similar arrangements;its subsidiaries within one year; and
(i) any agreement obligating the Company to deliver maintenance services franchise, licensing or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement relating to the acquisition by the Company of any operating business or the capital stock of any other Person;
(k) any agreement requiring the payment to any Person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business);
(l) any agreements, notes or other instruments relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations);
(m) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option development agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(r) any other material agreement whether or not made in the ordinary course of business. True and complete copies of all Material Contracts of the contracts and other agreements set forth in Schedule 3.19 of the Company Disclosure Volume (and all amendments, waivers or other modifications theretorequired to be set forth therein) have been furnished or made available previously provided to the Buyer. Each Material Contract is valid, subsisting, in full force and effect, binding upon the Company and, to the Company's knowledge, the other parties thereto in accordance with their terms, and the Company is not in default under any of them, nor, to the Company's knowledge, is any other party to any Material Contract in default thereunder, nor, to the Company's knowledge, does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse EffectParent.
Appears in 1 contract
Contracts and Other Agreements. Section 3.12 of the Disclosure Schedule sets forth a list of the following contracts (a) Contracts and other agreements agreements, whether written or binding oral (“Contracts”) described in this subsection, to which the Company is a party or by or to which it or any of its assets, assets or properties or securities are bound or subject (each, a "are referred to herein collectively as “Material Contract"):Contracts”:
(ai) any agreement or series of related agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officerStockholder (including, directorto the Company’s Knowledge, holder any of their respective Affiliates) or any security, employee Employee or consultant individual independent contractor of the Company under or to the Company’s Knowledge, with any entity in which any of the foregoing is an officer, director or five percent (5%) or greater Stockholder and pursuant to which the Company or such other party has current or future obligations or liabilities in excess of $50,000 in any obligations as fiscal year, excluding salary and bonuses of the date hereofEmployees;
(cii) contracts and other agreements pursuant to which the Company or the other party thereto has current or future obligations or liabilities in excess of $50,000 in any agreement fiscal year and that are required to be disclosed on Schedule 2.26 of the Company Disclosure Schedule;
(iii) contracts and other agreements with any labor union union, works council or association representing any employee of the CompanyEmployee;
(div) any agreement contracts and other agreements for the procurement by the Company (including by purchase or sale license) of software, materials, supplies, equipment, merchandise or services services, for an amount in excess of $100,000 per annum;
(v) contracts and other agreements for the sale or license by the Company to any third party of software, materials, supplies, equipment, merchandise or services, or relating to capital expenditures, that contains an escalation involves recurring subscription or license revenue in excess of $200,000 per annum;
(vi) contracts and other agreements for the exclusive license of any of the assets or properties of the Company not described in clause (v) or for the grant to any person of any option, right of first refusal, or preferential or similar right to purchase any of such assets or properties;
(vii) strategic partnership, alliance, joint development and joint marketing agreements, and joint venture agreements;
(viii) contracts and other agreements that obligates obligate the Company to purchase or license all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases or licenses of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(eix) any agreement for the sale of any of the assets contracts and other agreements with customers, suppliers, partners or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(f) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(g) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers collaborators for the sharing of fees, the rebating of charges or other similar arrangementsarrangements (except for customer contracts containing rebating of charges arrangements in the ordinary course of business consistent with past practice), including contracts containing any Most Favored Customer Provision;
(ix) any agreement obligating contracts or other agreements under which the Company agrees to deliver maintenance services indemnify any party for material Tax liabilities of such party or future product enhancements or containing to share a "most favored nation" pricing clausematerial Tax liability of any party;
(jxi) contracts and other agreements containing any agreement covenant limiting the freedom of the Company or any of its present or future Affiliates to (A) engage in any line of business or in any geographic territory or to compete with any Person, or which grants to any Person any exclusivity with respect to any geographic territory, any customer, or any product or service, or (B) acquire property (tangible or intangible);
(xii) contracts and other agreements relating to the acquisition or disposition by the Company of any operating business or the capital stock or other securities of any other Person;
(kxiii) any agreement contracts and other agreements requiring the payment to any Person person of a brokerage commission, success fee or sales commission or a finder's or referral fee (royalty, other than arrangements to pay commissions or fees to employees Employees in the ordinary course of business);
(lxiv) contracts and other agreements outside the ordinary course of business consistent with past practice pursuant to which the Company may collect any Personal Information from any third parties;
(xv) mortgages, indentures, loan or credit agreements, factoring agreements, promissory notes or and other agreements and instruments relating to the borrowing of money or evidencing outstanding indebtedness financing or sale of the Company for borrowed money (including capitalized lease obligations)receivables;
(mxvi) any leaseresearch, sublease development (whether contracted or shared), and manufacturing agreements;
(xvii) reseller or distributorship agreements, original equipment manufacturer (OEM) agreements, or systems integrator agreements;
(xviii) leases, financing agreements, subleases or other agreement agreements under which the Company is lessor or lessee of any real property or equipment or other tangible personal property;
(nxix) any agreement with a change licenses, sublicenses and other agreements required to be listed in Schedule 2.16(c) of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agentDisclosure Schedule; and
(rxx) any other material agreement whether or not contracts with Governmental Entities.
(b) Schedule 2.13 of the Company Disclosure Schedule contains a true, correct and complete list of all Material Contracts numbered as appropriate under subsection (a) hereof. The Company has made in available to the ordinary course of business. True Buyer true and complete copies of all Material Contracts (and all amendments, waivers amendments or other modifications thereto) have been furnished or made available to thereto or, in the Buyercase of oral Material Contracts, complete and accurate descriptions in all material respects. Each All the Material Contract is Contracts are valid, subsisting, in full force and effect, and binding upon the Company and, to the Knowledge of the Company's knowledge, on the other parties thereto in accordance with their termsparty (ies) thereto. As of the Agreement Date, and no written notice of termination or amendment of any Material Contract has been given to the Company by any other party thereto. Neither the Company nor, to the Knowledge of the Company, any other party thereto, is not in default under any of themMaterial Contract, norand, to the Company's knowledge, is any other party to any Material Contract in default thereunder, nor, to Knowledge of the Company's knowledge, no event has occurred nor does any condition exist that with notice or lapse of time or both would constitute a default by the Company or any such other party thereunder. The Company is in compliance with all material (i) delivery requirements, except(ii) time lines, (iii) schedules, and (iv) time of performance requirements and other material milestones under all Material Contracts. The Company has not incurred any significant cost over-runs on any Material Contract, and the Company has no reasonable basis to believe that it will incur any such significant cost over-runs.
(c) There is no Contract or Order to which the Company is a party, subject or otherwise bound, that would reasonably be expected to prohibit, impair or otherwise limit: (a) any current business practice of the Company or any of its present Affiliates; (b) any acquisition of property (tangible or intangible) by the Company or any of its present Affiliates; (c) the conduct of the Business by the Company; or (d) except as set forth on Schedule 2.13(c) of the Company Disclosure Schedule, the freedom of the Company or any of its present Affiliates to engage in any line of business or to compete or do business with any Person, in each case whether arising as a result of a change in control of the Company or any of its present Affiliates or otherwise. Without limiting the generality of the foregoing casesand except as set forth in Schedule 2.13(c) of the Company Disclosure Schedule, such defaults as would notthe Company has not (x) entered into any Contract under which the Company or any of its present Affiliates is restricted from selling, either individually licensing, manufacturing or otherwise distributing any of its technology or products or from providing services to customers or potential customers or any class of customers, in any geographic area, during any period of time, or in any segment of the aggregatemarket, have(y) granted any Person exclusive rights to sell, license, manufacture or otherwise distribute any of the Company’s or any of its present Affiliates’ technology or products in any geographic area or with respect to any customers or potential customers or any class of customers during any period of time or in any segment of the market, or be reasonably likely (z) entered into any Contract that will bind the Buyer or any of its Affiliates with respect to havethe Buyer’s or the Buyer’s Affiliates’ own customers, a Material Adverse Effectproducts or services.
Appears in 1 contract
Contracts and Other Agreements. Section 3.12 Schedule 2.16 of the Disclosure ------------------------------ Schedule sets forth contains a complete and accurate list of all of the following contracts and other agreements to which the Company is a party or by or to which any of it or its assets, assets or properties or securities are bound or subject (each, a "Material Contract"):or which are necessary for the Company to conduct its business as presently conducted:
(ai) any agreement or series of related contracts and other agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder of employee, consultant, agent or other representative or with any security, employee person or consultant entity in which any of the Company under which foregoing has an interest, including any "Affiliate" or "Associate" of such person or entity, as such terms are defined in the Company has any obligations as Securities Act of 1933 and the date hereofrules and regulations published thereunder;
(cii) any agreement contracts and other agreements with any labor union or association representing any employee employee;
(iii) contracts and other agreements for the supply to any person of all or a portion of such person's requirements of any product or service sold by the Company;
(div) any agreement for the purchase or sale of materials, supplies, equipment, merchandise or services that contains an escalation clause or that obligates the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(e) any agreement contracts and other agreements for the sale of any of the its assets or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such of its assets or properties;
(fv) joint venture and partnership agreements;
(vi) contracts or other agreements under which the Company agrees to indemnify any agreement party or to share tax liability of suretyany party;
(vii) contracts or other agreements of guaranty or relating to matters of suretyship to which the Company is a party or by which its assets or properties are subject or bound,
(viii) contracts and other agreements calling for an aggregate price or fee, guarantee or indemnificationpayments in any one year, other of more than agreements $10,000 excluding purchase or sales orders entered into by the Company as a purchaser or a seller in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000business;
(gix) any agreement which contains covenants of the Company contracts and other agreements that cannot to compete in any line of businessbe cancelled without liability, in any geographic area premium or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Companypenalty upon thirty (30) days' notice;
(hx) any agreement contracts and other agreements with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(ixi) contracts and other agreements containing obligations or liabilities of any agreement obligating kind to holders of the Company Company's securities as such (including, without limitation, an obligation to deliver maintenance services register any of such securities under any federal or future product enhancements or containing a "most favored nation" pricing clausestate securities laws);
(jxii) contracts and other agreements containing covenants of the Company not to compete in any agreement line of business or with any person in any geographical area or covenants of any other person or entity not to compete with the Company in any line of business or in any geographical area;
(xiii) contracts and other agreements relating to the acquisition by the Company of any operating business or the capital stock of any other Personperson, corporation or other entity;
(kxiv) contracts or agreements relating to or affecting any agreement trade name, trademark, service ▇▇▇▇, patent rights, copyright, know-how, software or other intellectual property owned, licensed or used by the Company in the course of its business, including without limitation all contracts and agreements relating to the development and use of software;
(xv) contracts and other agreements requiring the payment to any Person person of a brokerage royalty, override or sales similar commission or fee;
(xvi) contracts and other agreements relating to the borrowing of money by the Company or subjecting any assets or properties of the Company to security interests, liens or other liabilities or obligations;
(xvii) any agreement, contract or commitment which might reasonably be expected to have a finder's potential adverse impact on the business or referral fee operations of the Company;
(xviii) any contract or other than arrangements to pay commissions or fees to employees agreement not made in the ordinary course of business);; or
(l) any agreements, notes or other instruments relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations);
(m) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(rxix) any other material contract or other agreement whether or not made in the ordinary course of business. True There have been delivered or made available to the Buyer true and complete copies of all Material Contracts (of the written contracts and all amendments, waivers or other modifications thereto) have been furnished or made available to the Buyeragreements described on Schedule 2.16. Each Material Contract is valid, subsisting, in full force All of such contracts and effect, other agreements are valid and binding upon the Company and, to the Company's knowledge, the other parties thereto in accordance with their terms, and the Company is not has performed in default under any of them, nor, to the Company's knowledge, is any other party to any Material Contract in default thereunder, nor, to the Company's knowledge, does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.all respects all contractual obligations
Appears in 1 contract
Sources: Stock Purchase Agreement (Fisher Business Systems Inc)
Contracts and Other Agreements. (a) Section 3.12 4.10 of the Company Disclosure Schedule sets forth a list of the following contracts and other agreements to which the Company is a party or by which it or to which any of its assets, assets or properties or securities are bound or subject (each, a "Material Contract"):subject:
(ai) any agreement or series of or related agreements requiring that requires aggregate payments expenditures by or to the Company in any one year of more than CDN $50,00010,000;
(bii) any agreement with or for the benefit of any current or former officer, director, holder of any securityStockholder, employee or consultant of the Company under which the Company has any obligations as of the date hereofCompany;
(ciii) any agreement with any labor union or association representing any employee of the Company;
(div) any indenture, trust agreement, loan agreement or note that involves or evidences outstanding Indebtedness, obligations or liabilities for borrowed money;
(v) any agreement for of surety, guarantee or indemnification;
(vi) any agreement that limits or restricts the purchase Company or sale any of materialsits affiliates or successors in competing or engaging in any line of business, suppliesin any geographic area or with any Person;
(vii) any agreement granting to the Company the right to use, equipment, merchandise or services that contains an escalation clause or that obligates restricting the right of the Company to purchase all or substantially all of its requirements of a particular product or service from a supplier or to make periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium)use any Company Proprietary Right;
(eviii) an assignment or license of any Company Proprietary Right;
(ix) any agreement with any customer, supplier or other party for the sharing of fees, the rebating or discounting of charges, the provision of free or underpriced services or other similar arrangements;
(x) any interest rate, equity or other swap or derivative instrument;
(xi) any agreement for the sale of any of the assets or properties of the Company other than in the ordinary course of business consistent with past practice or for the grant to any person Person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties;
(fxii) any agreement in which the Company is the purchaser of surety, guarantee goods or indemnification, other than agreements services that could result in the ordinary course Company or an assignee of business with respect to obligations in an aggregate amount the Company incurring a liability, premium or penalty upon cancellation (whether or not in excess of $50,000such liability, premium or penalty can be avoided by notice or other action);
(g) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(i) any agreement obligating the Company to deliver maintenance services or future product enhancements or containing a "most favored nation" pricing clause;
(j) any agreement relating to the acquisition by the Company of any operating business or the capital stock of any other Person;
(kxiii) any agreement requiring the payment to any Person of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business)business consistent with past practice;
(lxiv) any agreementsagreement with any customer, notes supplier or other instruments relating to or evidencing outstanding indebtedness of party that involves, in the Company for borrowed money (including capitalized lease obligations)aggregate, more than CDN $10,000 in any one year;
(mxv) any lease, sublease or other agreement under which the Company is lessor or lessee of any real property or equipment or other tangible property;; or
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(rxvi) any other material agreement whether agreement, contract or not made in arrangement to which the ordinary course of businessCompany is a party. True and complete copies of all Material Contracts (and all amendments, waivers or other modifications thereto) the contracts set forth on the Company Disclosure Schedule have been furnished or made available to the BuyerBarnabus. Each Material Contract is All such contracts and other agreements are valid, subsisting, in full force and effect, binding upon the Company Company, and, to the best knowledge of the Company's knowledge, binding upon the other parties thereto in accordance with their terms, and and, except as disclosed in Section 4.10(a) of the Company Disclosure Schedule, the Company has paid in full or accrued all amounts now due from it thereunder, and has satisfied in full all of its liabilities and obligations thereunder that are presently required to be satisfied and is not in default under any of them, nor, to the best knowledge of the Company's knowledge, is any other party to any Material Contract such contract or other agreement in default thereunder, nor, to the Company's knowledge, nor does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each . Such contracts are not automatically void or terminable by the other party as a result of the foregoing casesentrance by the Company into this Agreement or the consummation of the transactions contemplated hereby or by the Related Agreements.
(b) Except as otherwise disclosed on Section 4.10(b) of the Company Disclosure Schedule, no stockholder, officer, director or Key Employee of the Company nor any "affiliate" or "associate" of such defaults as would notPersons (herein, either individually a "Related Party") is a party to any material agreement with the Company, including, without limitation, any contract, agreement or in other arrangement providing for the aggregate, haverental of real or personal property from, or be reasonably likely otherwise requiring payments to, any Related Party. Except as disclosed in Section 4.10(b) of the Company Disclosure Schedule, no employee of the Company or any Related Party is indebted to have, a Material Adverse Effectthe Company and the Company is not indebted to any of its employees or any Related Party.
Appears in 1 contract
Contracts and Other Agreements. Section 3.12 of the Disclosure Schedule sets forth a list of the following contracts (a) Contracts and other agreements described in this subsection, whether written or oral, to which the Company Arbortext or any of its Subsidiaries is a party or by or to which it or any of its assets, assets or properties or securities are bound or subject (each, a are referred to herein collectively as "Material ContractContracts")::
(ai) any agreement or series of related contracts and other agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder stockholder or employee of Arbortext or any security, employee Subsidiary or consultant with any entity in which any of the Company under foregoing is an officer, director or 5% or greater shareholder and pursuant to which the Company Arbortext or any Subsidiary or such other party has current or future obligations or liabilities in excess of $100,000 in any obligations as of the date hereoffiscal year;
(cii) any agreement contracts and other agreements with any labor union or association representing any employee of the CompanyArbortext or any Subsidiary;
(diii) any agreement contracts and other agreements for the purchase purchase, sale or sale license of software, materials, supplies, equipment, merchandise or services that contains services, or relating to capital expenditures, for an escalation clause amount in excess of $100,000 (taking into account any escalation, renegotiation or that obligates redetermination);
(iv) contracts and other agreements for the Company sale or exclusive license of any of the assets or properties of Arbortext or any Subsidiary or for the grant to any person of any option, right of first refusal, or preferential or similar right to purchase any of such assets or properties;
(v) partnership, collaboration, mutual assistance, joint development, joint marketing and joint venture agreements;
(vi) contracts or other agreements under which Arbortext or any Subsidiary agrees to indemnify any party for Tax liabilities or to share the Tax liability of any party;
(vii) contracts and other agreements that obligate Arbortext or any Subsidiary to purchase or license all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases or licenses of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(eviii) any agreement for the sale of any of the assets contracts and other agreements with customers, suppliers, partners or properties of the Company other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any such assets or properties;
(f) any agreement of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000;
(g) any agreement which contains covenants of the Company not to compete in any line of business, in any geographic area or with any Person or covenants of any other Person not to compete with the Company or in any line of business of the Company;
(h) any agreement with customers or suppliers collaborators for the sharing of fees, the rebating of charges or other similar arrangements, including contracts containing any Most Favored Customer Provision;
(iix) contracts and other agreements containing covenants of Arbortext or any agreement obligating the Company Subsidiary not to deliver maintenance services compete in any line of business or future product enhancements geographical area, or containing a "most favored nation" pricing clausewith any person, or covenants of any current or former employee or other person not to compete with Arbortext or any Subsidiary;
(jx) any agreement contracts and other agreements relating to the acquisition by the Company Arbortext or any Subsidiary of any operating business or the capital stock or other securities of any other Personperson;
(kxi) any agreement contracts and other agreements requiring the payment to any Person person of a brokerage commission, fee or sales commission or a finder's or referral fee (royalty, other than arrangements to pay commissions or fees to employees in the ordinary course of business);
(lxii) any mortgages, indentures, loan or credit agreements, factoring agreements, promissory notes or and other agreements and instruments relating to the borrowing of money or evidencing outstanding indebtedness financing or sale of the Company for borrowed money (including capitalized lease obligations)receivables;
(mxiii) any leaseresearch, sublease development (whether contracted or shared), distributorship, manufacturing and reseller agreements;
(xiv) leases, financing agreements, subleases or other agreement agreements under which the Company Arbortext or any Subsidiary is lessor or lessee of any real property or equipment or other tangible personal property;
(nxv) any agreement with a change licenses, sublicenses and other agreements required to be listed in Section 2.16(b) of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agentArbortext Disclosure Schedule; and
(rxvi) any other material agreement contract or agreement, whether or not made in the ordinary course of business.
(b) All Material Contracts are listed in Section 2.13 of the Arbortext Disclosure Schedule (which may be by cross-reference to Section 2.16(b) or 2.19(a)). True Arbortext has delivered or made available to PTC true and complete copies of all Material Contracts (and all amendments, waivers or other modifications thereto) have been furnished or made available to thereto or, in the Buyercase of oral Material Contracts, complete and accurate descriptions. Each All of the Material Contract is Contracts are valid, subsisting, in full force and effect, and binding upon Arbortext or the Company respective Subsidiary and, to the CompanyArbortext's knowledgeKnowledge, on the other parties party(ies) thereto. No written (or, to Arbortext's Knowledge, oral) notice of termination or amendment of any Material Contract has been given to Arbortext or any Subsidiary by any other party thereto. Arbortext or the respective Subsidiary and each other party thereto has paid in accordance with their termsfull or, to Arbortext's Knowledge, accrued all amounts now due from it under each Material Contract and has satisfied in full or provided for all of its liabilities and obligations thereunder that are presently required to be satisfied or provided for, and the Company is not in default under any of them, nor, to the Company's knowledge, is nor has any other party to any Material Contract in default thereunder, nor, to the Company's knowledge, event occurred or does any condition exist that with notice or lapse of time or both would constitute a default by Arbortext or any Subsidiary or, to Arbortext's Knowledge, any such other party thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Parametric Technology Corp)
Contracts and Other Agreements. Section 3.12 3.11 of the Disclosure Schedule sets forth a list all of the following contracts and other agreements to which the Company or any Subsidiary is currently a party or by or to which any of it or its assets, assets or properties or securities are bound or subject (eachand under which it has current or future rights or obligations) and which are material to the operation or value of the Company and the Subsidiaries taken as a whole, a "Material Contract"):including without limitation:
(a) any agreement or series of related contracts and other agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officer, director, holder of any securitystockholder, employee employee, consultant, agent or consultant other representative of the Company under or any Subsidiary and contracts and other agreements for the payment of fees or other consideration to any entity in which any officer or director of the Company or any Subsidiary has any obligations as of the date hereofan interest;
(cb) any agreement contracts and other agreements with any labor union or association representing any employee of the CompanyCompany or any Subsidiary or otherwise providing for any form of collective bargaining;
(dc) any agreement contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation escalation, renegotiation or redetermination clause or that obligates obligate the Company or any Subsidiary to purchase all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(ed) any agreement contracts and other agreements for the sale of any of the assets or properties of the Company or any Subsidiary other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties;
(e) partnership or joint venture agreements;
(f) contracts or other agreements under which the Company or any agreement Subsidiary agrees to indemnify any party or to share the tax liability of surety, guarantee or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000any party;
(g) contracts, options and other agreements for the purchase of any agreement which contains covenants of the Company not to compete asset, tangible or intangible calling for an aggregate purchase price or payments in any line one year of businessmore than $100,000 in any one case (or in the aggregate, in any geographic area or with any Person or covenants the case of any related series of contracts and other Person not to compete with the Company or in any line of business of the Companyagreements);
(h) contracts and other agreements that cannot by their terms be canceled by the Company or any agreement Subsidiary and any successor or assignee of the Company or any Subsidiary without liability, premium or penalty on no less than thirty days notice;
(i) contracts and other agreements with customers or suppliers for the sharing of fees, the rebating of charges or other similar arrangements;
(ij) contracts and other agreements containing obligations or liabilities of any agreement obligating kind to holders of the securities of the Company as such (including, without limitation, an obligation to deliver maintenance services register any of such securities under any federal or future product enhancements or containing a "most favored nation" pricing clausestate securities laws);
(jk) contracts and other agreements containing covenants of the Company or any agreement Subsidiary not to compete in any line of business or with any person or covenants of any other person not to compete with the Company or any Subsidiary in any line of business;
(l) contracts and other agreements relating to the acquisition by the Company or any Subsidiary of any operating business or the capital stock of any other Personperson;
(km) any agreement contracts and other agreements requiring the payment to any Person person of a brokerage or sales commission or a finder's fee, including contracts or referral fee other agreements with consultants which provide for aggregate payments in excess of $100,000;
(n) contracts, indentures, mortgages, promissory notes, loan agreements, guaranties, security agreements, pledge agreements, and other agreements relating to the borrowing of money or securing any such liability;
(o) distributorship or licensing agreements;
(p) contracts under which the Company or the Subsidiary will acquire or has acquired ownership of, or license to, intangible property, including software (other than arrangements to pay commissions or fees to employees in software licensed by the ordinary course of businessCompany as an end user for less than $100,000 and not distributed by it);
(lq) any agreementsleases, notes subleases or other instruments relating to or evidencing outstanding indebtedness of the Company for borrowed money (including capitalized lease obligations);
(m) any lease, sublease or other agreement agreements under which the Company or the Subsidiary is lessor or lessee of any real property or equipment or other tangible property;
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; andor
(r) any other material contract or other agreement whether or not made in the ordinary course of businessbusiness the breach of which would have or may have a Material Adverse Effect. True The Company has made available to the Purchasers true and complete copies of all Material Contracts of the contracts and other agreements (and all amendments, waivers or other modifications thereto) have been furnished or made available to set forth in Section 3.11 of the BuyerDisclosure Schedule. Each Material Contract is All of the contracts and other agreements listed in Section 3.11 of the Disclosure Schedule are valid, subsisting, in full force and effect, binding upon the Company andor the applicable Subsidiary, and to the knowledge of the Company's knowledge, binding upon the other parties thereto in accordance with their terms, except where the failure to be valid, binding, in full force and effect would not have a Material Adverse Effect. The Company or the Company applicable Subsidiary has satisfied in all material respects or provided for in all material respects all of its liabilities and obligations thereunder which are presently required to be satisfied or provided for, and is not in default under any of them, nor, except where the failure to so satisfy or provide or not be in default would not have a Material Adverse Effect. To the knowledge of the Company's knowledge, is any no other party to any Material Contract such contract or other agreement is in material default thereunder, nor, to the best knowledge of the Company's knowledge, does any condition exist that with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such except for defaults as that would not, either individually singly or in the aggregate, have, or be reasonably likely to have, have a Material Adverse Effect.
Appears in 1 contract
Sources: Series J Convertible Preferred Stock Purchase Agreement (Viacell Inc)
Contracts and Other Agreements. Section 3.12 2.13 of the Disclosure ------------------------------ ------------ Schedule sets forth a correct and complete list of all of the following contracts and other agreements to which the Company BLI is a party or by or to which any of it or its assets, assets or properties or securities are bound or subject (each, a "Material Contract"):subject:
(ai) any agreement or series of related contracts and other agreements requiring aggregate payments by or to the Company of more than $50,000;
(b) any agreement with or for the benefit of any current or former officerstockholder, director, holder officer, employee, consultant, agent or other representative of BLI, the Key Employees or Triumph and contracts and other agreements for the payment of fees or other consideration to any security, employee or consultant entity in which any of the Company under which the Company foregoing has any obligations as of the date hereofan interest;
(cii) any agreement contracts and other agreements with any labor union or association representing any employee of the CompanyBLI or otherwise providing for any form of collective bargaining;
(diii) any agreement contracts and other agreements for the purchase or sale of materials, supplies, equipment, merchandise or services that contains contain an escalation escalation, renegotiation or redetermination clause or that obligates the Company obligate BLI to purchase all or substantially all of its requirements of a particular product or service from a supplier supplier, or to make for periodic minimum purchases of a particular product or service from a supplier, which is not terminable on not more than 30 days notice (without penalty or premium);
(eiv) any agreement contracts and other agreements for the sale of any of the assets or properties of the Company BLI other than in the ordinary course of business or for the grant to any person of any options, rights of first refusal, or preferential or similar rights to purchase any of such assets or properties;
(fv) any agreement of surety, guarantee partnership or indemnification, other than agreements in the ordinary course of business with respect to obligations in an aggregate amount not in excess of $50,000joint venture agreements;
(gvi) contracts or other agreements under which BLI agrees to act as surety or guarantor for or to indemnify any agreement which contains covenants of party or to share the Company not to compete in any line of business, in any geographic area or with any Person or covenants tax liability of any other Person not to compete with the Company or in any line of business of the Companyparty;
(hvii) contracts, options, outstanding purchase orders and other agreements for the purchase of any agreement asset, tangible or intangible;
(viii) contracts and other agreements that cannot by their terms be canceled by BLI and any successor or assignee of BLI without liability, premium or penalty on less than thirty (30) days notice;
(ix) contracts and other agreements with customers customers, suppliers or suppliers other parties for the sharing of fees, the rebating of charges or other similar arrangements;
(ix) any agreement obligating contracts, stipulations or agreements with the Company to deliver maintenance services SBA or future product enhancements or containing a "most favored nation" pricing clausethe CDOB;
(jxi) contracts and other agreements containing obligations or liabilities of any agreement kind to stockholders or holders of other securities of BLI as such (including, without limitation, an obligation to register any of such securities under any federal or state securities laws);
(xii) contracts and other agreements containing covenants of BLI not to compete in any line of business or with any person or entity or covenants of any other person or entity not to compete with BLI in any line of business;
(xiii) contracts and other agreements relating to the acquisition by the Company BLI of any operating business or the capital stock of any other Personperson or entity;
(kxiv) any agreement contracts and other agreements requiring the payment to any Person party of a brokerage or sales commission or a finder's or referral fee (other than arrangements to pay commissions or fees to employees in the ordinary course of business)fee;
(lxv) any contracts, indentures, mortgages, promissory notes, debentures loan agreements, notes or guaranties, security agreements, pledge agreements, and other agreements and instruments relating to the borrowing or evidencing outstanding indebtedness lending of the Company for borrowed money (including capitalized lease obligations)or securing any such liability;
(mxvi) any leaseagreement or series of related agreements requiring aggregate payments by or to BLI of more than $10,000;
(xvii) contracts under which BLI will acquire or has acquired ownership of, sublease or license to, intangible property, including software;
(xviii) leases, subleases or other agreement agreements under which the Company BLI is lessor or lessee of any real property or equipment or other tangible property;; or
(n) any agreement with a change of control provision or otherwise requiring any consent, approval, waiver or other action by any Person in connection with the Merger;
(o) any stock option agreement, restricted stock agreement, employment or severance agreement, phantom stock plan or bonus, incentive or similar agreement, arrangement or understanding;
(p) any agreement involving the assignment, transfer, license (whether as licensee or licensor) or pledge or encumbrance of any Company Intellectual Property;
(q) any distribution or sales representative agreement or agreement appointing any agent; and
(rxix) any other material contract or other agreement whether or not made in the ordinary course of businessbusiness that has or may have a material effect on BLI's business or prospects, condition, financial or otherwise, or any of the assets or properties of BLI. True There have been delivered or made available to MFC true and complete copies of all Material Contracts of the contracts and other agreements (and all amendments, waivers or other modifications thereto) have been furnished or made available to set forth in Section 2.13 of the BuyerDisclosure ------------ Schedule. Each Material Contract is All of such contracts and other agreements are valid, subsisting, in full force and effect, binding upon the Company andBLI, and to the Company's knowledgebest knowledge of BLI, the Key Employees and Triumph, binding upon the other parties thereto in accordance with their terms, and the Company BLI has paid in full or accrued all amounts now due thereunder and has satisfied in full or provided for all of its liabilities and obligations thereunder which are presently required to be satisfied or provided for, and is not in default under any of them, nor, to the Company's knowledgebest knowledge of BLI, the Key Employees and Triumph, is any other party to any Material Contract such contract or other agreement in default thereunder, nor, to the Company's knowledge, nor does any condition exist that constitutes or with notice or lapse of time or both would constitute a default thereunder, except, in each of the foregoing cases, such defaults as would not, either individually or in the aggregate, have, or be reasonably likely to have, a Material Adverse Effect.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medallion Financial Corp)