Contracts; Debt Instruments. Except as set forth in Schedule 3.10 or Schedule 3.13, neither SCB nor any of its Subsidiaries is a party to or bound by: (a) any employment, severance or consulting agreement, contract or commitment with any executive officer or higher level employee or member of SCB's board of directors, other than those that are terminable by SCB or any of its Subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to SCB; (b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement; (c) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in the ordinary course of business; (d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of SCB or any of its Subsidiaries to engage in any line of business or to compete with any Person or granting any exclusive distribution rights; (e) any agreement, contract or commitment that directly or indirectly prevents SCB or any of its Subsidiaries from providing services to or performing work for competitors of any customer of SCB or any of its Subsidiaries or any other similar restriction imposed on SCB or any of its Subsidiaries by a customer; (f) any agreement, contract or commitment currently in force relating to the disposition or acquisition by SCB or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which SCB or any of its Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than SCB's Subsidiaries; (g) any customer, dealer, distributor, marketing or development agreement currently in force under which SCB or any of its Subsidiaries has continuing material obligations to provide any product, technology or service and that may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement entered into outside the ordinary course pursuant to which SCB or any of its Subsidiaries have continuing material obligations to develop any Intellectual Property that may not be canceled without penalty upon notice of ninety (90) days or less; (h) any agreement, contract or commitment currently in force and entered into outside the ordinary course of business to provide source code to any third party for any product or technology that is material to SCB or any of its Subsidiaries; (i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 individually; (j) any material settlement or release agreement entered into within two (2) years prior to the date of this Agreement; (k) any agreement entered into in the ordinary course of business providing for annualized revenue to SCB or any of its Subsidiaries of more than $500,000; or (l) any written or oral contract for hire which obligates SCB or any of its Subsidiaries to work on a fixed-fee basis regardless of the number of hours actually spent on the project by the SCB or Subsidiary employees (a "Fixed Fee Contract"), and, to the best of SCB's knowledge, no Fixed-Fee Contract would reasonably be expected as of the Effective Time to cost SCB or any of its Subsidiaries more in expenses and wages payable to its employees than fees and revenues generated by the Fixed-Fee Contract except where the cost of completing such Fixed Fee Contracts, individually or in the aggregate, would not reasonably be expected to result in an SCB Material Adverse Effect. SCB and its Subsidiaries are not, nor to SCB's knowledge is any other party to a Contract, in breach, violation or default under, and neither SCB nor any of its Subsidiaries have received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any contract that is required to be disclosed on Schedule 3.10 and Schedule 3.13 above in such a manner as would permit any other party to cancel or terminate any such Contract, or would permit any other party to seek material damages or other remedies.
Appears in 4 contracts
Sources: Merger Agreement (Ciber Inc), Merger Agreement (Ciber Inc), Merger Agreement (SCB Computer Technology Inc)
Contracts; Debt Instruments. Except as set forth in Schedule 3.10 or Schedule 3.13, neither SCB ALPHANET nor any of its Subsidiaries is a party to or bound by:
(a) any employment, severance employment or consulting agreement, contract or commitment with any executive officer or higher level employee or member of SCBALPHANET's board of directors, other than those that are terminable by SCB ALPHANET or any of its Subsidiaries on no more than thirty (30) 30 days' notice without liability or financial obligation to SCBALPHANET;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in the ordinary course of businessbusiness that may not be canceled by ALPHANET or any of its Subsidiaries without penalty upon notice of 90 days or less;
(d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of SCB ALPHANET or any of its Subsidiaries to engage in any line of business or to compete with any Person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment that directly or indirectly prevents SCB ALPHANET or any of its Subsidiaries from providing services to or performing work for competitors of any customer of SCB ALPHANET or any of its Subsidiaries or any other similar restriction imposed on SCB ALPHANET or any of its Subsidiaries by a customer;
(f) any agreement, contract or commitment currently in force relating to the disposition or acquisition by SCB ALPHANET or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which SCB ALPHANET or any of its Subsidiaries has have any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than SCBALPHANET's Subsidiaries;
(g) any customer, dealer, distributor, marketing or development agreement currently in force under which SCB ALPHANET or any of its Subsidiaries has have continuing material obligations in excess of $100,000 to provide any product, technology or service and that may not be canceled without penalty upon notice of ninety (90) 90 days or less, or any material agreement entered into outside the ordinary course pursuant to which SCB ALPHANET or any of its Subsidiaries have continuing material obligations to develop any Intellectual Property that may not be canceled without penalty upon notice of ninety (90) 90 days or less;
(h) any agreement, contract or commitment currently in force and entered into outside the ordinary course of business to provide source code to any third party for any product or technology that is material to SCB ALPHANET or any of its SubsidiariesSubsidiaries and that may not be canceled by ALPHANET or any of its Subsidiaries without penalty upon notice of 90 days or less;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 individually;
(j) any material settlement or release agreement entered into within two (2) years prior to the date of this Agreement;
(k) any agreement entered into in the ordinary course of business providing for future annualized revenue to SCB ALPHANET or any of its Subsidiaries Subsidiaries, beginning January 1, 2003, of more than $500,000; or
(l) any written or oral contract for hire which obligates SCB ALPHANET or any of its Subsidiaries to work on a fixed-fee basis regardless of the number of hours actually spent on the project by the SCB ALPHANET or Subsidiary employees (a "Fixed Fee Contract"), and, to the best of SCBALPHANET's knowledge, no Fixed-Fee Contract would reasonably be expected as of the Effective Time to cost SCB ALPHANET or any of its Subsidiaries more in expenses and wages payable to its employees than fees and revenues generated by the Fixed-Fee Contract except where the cost of completing such Fixed Fee Contracts, individually or in the aggregate, would not reasonably be expected to result in an SCB ALPHANET Material Adverse Effect. SCB ALPHANET and its Subsidiaries are not, nor to SCBALPHANET's knowledge is any other party to a Contractan agreement required to be disclosed on Schedules 3.10 or 3.13, in breach, violation or default under, and neither SCB ALPHANET nor any of its Subsidiaries have received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any contract that is required to be disclosed on Schedule 3.10 and Schedule 3.13 above such agreement in such a manner as would permit any other party to cancel or terminate any such Contractagreement, or would permit any other party to seek material damages or other remedies.
Appears in 3 contracts
Sources: Merger Agreement (Ciber Inc), Agreement and Plan of Merger (Ciber Inc), Merger Agreement (Ciber Inc)
Contracts; Debt Instruments. Except as set forth in Schedule 3.10 filed as exhibits to the Company SEC Filings filed prior to the date of this Agreement, none of the Company or Schedule 3.13, neither SCB nor any of its Subsidiaries Company Subsidiary is a party to or bound by:
by any contract (aA) any employment, severance or consulting agreement, contract or commitment with any executive officer or higher level employee or member of SCB's board of directors, other than those that are terminable by SCB or any of its Subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to SCB;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits to any party of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
, or (cB) any which, as of the date hereof, (1) is a "material agreement contract" (as such term is defined in Item 601(b)(10) of indemnification or any guaranty other than any agreement Regulation S-K of indemnification entered into in the ordinary course of business;
SEC), (d2) any agreement, contract or commitment containing any covenant limiting in any material respect the right of SCB or any of its Subsidiaries to engage in any line of business or to compete with any Person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment that directly or indirectly prevents SCB or any of its Subsidiaries from providing services to or performing work for competitors of any customer of SCB or any of its Subsidiaries or any other similar restriction imposed on SCB or any of its Subsidiaries by a customer;
(f) any agreement, contract or commitment currently in force relating to the disposition or acquisition by SCB or any of its Subsidiaries which involves aggregate expenditures after the date of this Agreement in excess of a material amount of assets not $25,000 (other than purchase orders for supplies and materials issued in the ordinary course of business or pursuant to consistent with past practice), (3) which SCB or any involves annual expenditures after the date of its Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than SCB's Subsidiaries;
(g) any customer, dealer, distributor, marketing or development agreement currently in force under which SCB or any of its Subsidiaries has continuing material obligations to provide any product, technology or service and that may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement entered into outside the ordinary course pursuant to which SCB or any of its Subsidiaries have continuing material obligations to develop any Intellectual Property that may not be canceled without penalty upon notice of ninety (90) days or less;
(h) any agreement, contract or commitment currently in force and entered into outside the ordinary course of business to provide source code to any third party for any product or technology that is material to SCB or any of its Subsidiaries;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit this Agreement in excess of $50,000 individually;
25,000 and is not cancelable within 90 days without fee or penalty, (j4) which contains any material settlement non-compete or release agreement entered into within two (2) years prior exclusivity provisions with respect to any line of business or geographic area with respect to the date of this Agreement;
(k) Company, any agreement entered into in the ordinary course of business providing for annualized revenue to SCB Company Subsidiary or any of its Subsidiaries the Company's current or future affiliates, which grants most favored customer status or otherwise guarantees any third party the right to receive the best terms the Company or any Company Subsidiary may offer, or which restricts the conduct of more than $500,000; or
(l) any written or oral contract for hire which obligates SCB line of business by the Company, any Company Subsidiary or any of its Subsidiaries to work on a fixed-fee basis regardless the Company's current or future affiliates or any geographic area in which the Company, any Company Subsidiary or any of the number Company's current or future affiliates may conduct business, in each case in any material respect or (5) which would prohibit or materially delay the consummation of hours actually spent the Merger or any of the transactions contemplated by this Agreement. Each contract of the type described in Section 3.12, whether or not set forth in this Section 3.12 of the Company Disclosure Schedule, is referred to herein as a "Company Material Contract." Each Company Material Contract is valid and binding on the project by the SCB or Company and each Company Subsidiary employees (a "Fixed Fee Contract"), party thereto and, to the best of SCBCompany's knowledge, no Fixed-Fee each other party thereto, and is in full force and effect, and the Company and each Company Subsidiary has in all material respects performed all obligations required to be performed by it to the date hereof under each Company Material Contract and, to the Company's knowledge, each other party to each Company Material Contract has in all material respects performed all obligations required to be performed by it under such Company Material Contract, except as would reasonably be expected as of the Effective Time to cost SCB or any of its Subsidiaries more in expenses and wages payable to its employees than fees and revenues generated by the Fixed-Fee Contract except where the cost of completing such Fixed Fee Contractsnot, individually or in the aggregate, would not reasonably be expected to result in an SCB a Company Material Adverse Effect. SCB and its Subsidiaries are notNone of the Company or any Company Subsidiary knows of, nor to SCB's knowledge is or has received notice of, any other party to a Contract, in breach, violation or default under, and neither SCB nor under (or any condition which with the passage of its Subsidiaries have received written time or the giving of notice that it has breached, violated or defaulted under, any of the material terms or conditions of any contract that is required to be disclosed on Schedule 3.10 and Schedule 3.13 above in would cause such a manner as would permit violation of or default under) any other party to cancel or terminate any such Company Material Contract, except for violations or defaults that would permit any other party not, individually or in the aggregate, reasonably be expected to seek material damages or other remediesresult in a Company Material Adverse Effect.
Appears in 2 contracts
Sources: Merger Agreement (T/R Systems Inc), Merger Agreement (Electronics for Imaging Inc)
Contracts; Debt Instruments. Except as set forth in Schedule 3.10 Section 3.17 of the Disclosure Schedule, none of the Company or Schedule 3.13, neither SCB nor any of its Subsidiaries is Subsidiary are a party to or bound byby any contract:
(a) which contains any employment, severance or consulting agreement, contract or commitment non-compete provisions with any executive officer or higher level employee or member of SCB's board of directors, other than those that are terminable by SCB or any of its Subsidiaries on no more than thirty (30) days' notice without liability or financial obligation respect to SCB;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in the ordinary course of business;
(d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of SCB or any of its Subsidiaries to engage in any line of business or any or geographic area with respect to compete with the Company, any Person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment that directly or indirectly prevents SCB Subsidiary or any of its Subsidiaries from providing services to the Company's current or performing work for competitors future affiliates, or restricts the conduct of any customer line of SCB business by the Company, any Subsidiary or any of its Subsidiaries the Company's current or future affiliates or any other similar restriction imposed on SCB geographic area in which the Company, any Subsidiary or any of its Subsidiaries by a customer;the Company's current or future affiliates may conduct business, in each case in any material respect,
(fb) any agreementwhich would prohibit or materially delay the consummation of the Transactions,
(c) which, contract or commitment currently in force relating to the disposition or acquisition by SCB or any as of its Subsidiaries after the date hereof, is a "material contract" (as such term is defined in Item 601(b)(10) of this Agreement Regulation S-K of a material amount the SEC), or
(d) which, as of assets not in the ordinary course of business or pursuant to which SCB or any of its Subsidiaries has any material ownership interest in any corporation, partnership, joint venture date hereof,
(i) involves aggregate annual expenditures or other business enterprise payments in excess of $100,000, except (1) those contracts cancelable (without material penalty, cost or other than SCB's Subsidiaries;
(gliability) any customer, dealer, distributor, marketing or development agreement currently in force under which SCB or any of its Subsidiaries has continuing material obligations to provide any product, technology or service and that may not be canceled without penalty upon notice of within ninety (90) days or less, or any material agreement entered into outside the ordinary course pursuant to which SCB or any of its Subsidiaries have continuing material obligations to develop any Intellectual Property that may not be canceled without penalty upon notice of ninety (90) days or less;
(h) any agreement, contract or commitment currently in force and entered into outside the ordinary course of business to provide source code to any third party for any product or technology that is material to SCB or any of its Subsidiaries;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 individually;
(j) any material settlement or release agreement entered into within two (2) years prior to the date of this Agreement;
(k) any agreement purchase orders for inventory entered into in the ordinary course of business providing for annualized revenue to SCB consistent with past practice,
(ii) contain minimum purchase conditions or requirements or other terms that restrict or limit the purchasing relationships of the Company or any Subsidiary, except (1) those contracts cancelable (without material penalty, cost or other liability) within ninety (90) days and (2) purchase orders for inventory entered into in the ordinary course of its Subsidiaries of more than $500,000; business consistent with past practice, or
(liii) any written is a license to or oral contract for hire which obligates SCB from the Company or any of its Subsidiaries Subsidiary relating to work on a fixed-fee basis regardless any Intellectual Property, except for such licenses as are disclosed in Section 3.17 of the number Disclosure Schedule. Each contract of hours actually spent the type described above in this Section 3.17, whether or not filed as an exhibit to any SEC Report or set forth in Section 3.17 of the Disclosure Schedule, is referred to herein as a "Company Material Contract." Each Company Material Contract is valid and binding on the project by the SCB or Company and each Subsidiary employees (a "Fixed Fee Contract"), party thereto and, to the best of SCBCompany's knowledge, no Fixed-Fee each other party thereto, and in full force and effect, and the Company and each Subsidiary has in all material respects performed all obligations required to be performed by it to the date hereof under each Company Material Contract and, to the Company's knowledge, each other party to each Company Material Contract has in all material respects performed all obligations required to be performed by it under such Company Material Contract, except as would reasonably be expected as of the Effective Time to cost SCB or any of its Subsidiaries more in expenses and wages payable to its employees than fees and revenues generated by the Fixed-Fee Contract except where the cost of completing such Fixed Fee Contractsnot, individually or in the aggregate, would not reasonably be expected to (1) prevent or materially delay consummation of the Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or any Ancillary Agreement or (3) result in an SCB a Material Adverse Effect. SCB and its Subsidiaries are notNone of the Company or any Subsidiary knows of, nor to SCB's knowledge is or has received notice of, any other party to a Contract, in breach, violation or default under (or any condition which with the passage of time or the giving of notice would cause such a violation of or default under, and neither SCB nor ) any Company Material Contract or any other contract to which it is a party or by which it or any of its Subsidiaries have received written notice properties or assets is bound, except for violations or defaults that it has breachedwould not, violated individually or defaulted underin the aggregate, reasonably be expected to (1) prevent or materially delay consummation of the Transactions, (2) otherwise prevent or materially delay performance by the Company of any of the its material terms obligations under this Agreement or conditions of any contract that is required to be disclosed on Schedule 3.10 and Schedule 3.13 above Ancillary Agreement or (3) result in such a manner as would permit any other party to cancel or terminate any such Contract, or would permit any other party to seek material damages or other remediesMaterial Adverse Effect.
Appears in 1 contract
Contracts; Debt Instruments. Except as Other than those agreements set forth in on Schedule 3.10 or 3.2(o)(1), which agreements are confidential and will not be made available, Schedule 3.133.2(o)(2) sets forth, neither SCB nor any as of its Subsidiaries is the date of this Agreement, a party to or bound by:
(a) any employment, severance or consulting true and complete list of each material agreement, contract lease, contract, note, mortgage, indenture, arrangement or commitment with any executive officer or higher level employee or member other obligation (collectively, "PARENT AGREEMENTS") of SCB's board of directors, other than those that are terminable by SCB Parent or any of its Subsidiaries subsidiaries (a) which would be required by Rule 601 of SEC Regulation S-K to be filed as an exhibit to an Annual Report on no more Form 10-K (including any Benefit Plan) or is a Parent Agreement (i) with respect to the acquisition or disposition of a material amount of Parent's assets (whether or not such Parent Agreement has been fully performed), (ii) other than thirty in connection with employment by Parent or any of its subsidiaries, contains a covenant not to compete with Parent or covenant by Parent not to compete with others, (30iii) days' notice without liability with an Affiliate (as such term is defined in Rule 12b-2 under the Exchange Act) of Parent (whether such Parent Agreement is oral or financial obligation to SCB;
written), (b) with respect to indebtedness for money borrowed (other than trade payables in the ordinary and usual course of business), (c) pursuant to which Parent or any of its subsidiaries is licensing its technology or intellectual property rights or pursuant to which Parent or any of its subsidiaries is a licensee of technology or intellectual property rights of others, (d) which constitutes an employment or consulting agreement of Parent or planany of its subsidiaries and provides for severance payments, termination payments, change-in-control payments or other similar payments, or (e) which constitutes any other liability (including, without limitation, any stock option planguarantee, stock appreciation right plan surety contract or stock purchase plansimilar instrument), any of obligation or transaction and, in the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence case of any of item referred to in this clause (e), is material to Parent and its subsidiaries or their businesses taken as a whole (the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
items referred to in clauses (ca) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in the ordinary course of business;
(d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of SCB or any of its Subsidiaries to engage in any line of business or to compete with any Person or granting any exclusive distribution rights;
through (e) any agreementof this sentence being referred to herein as "PARENT MATERIAL CONTRACTS"). Except as hereinabove provided, contract or commitment that directly or indirectly prevents SCB or any a true and complete copy of its Subsidiaries from providing services to or performing work for competitors of any customer of SCB or any of its Subsidiaries or any other similar restriction imposed on SCB or any of its Subsidiaries by a customer;
(f) any agreement, contract or commitment currently in force relating each Parent Material Contract has been made available to the disposition Company or acquisition by SCB its representative. Each Parent Material Contract is a valid and legally binding obligation of Parent or any of its Subsidiaries after the date of this Agreement of a material amount of assets not subsidiaries, whichever is applicable, is in the ordinary course of business or pursuant to which SCB or any of its Subsidiaries has any material ownership interest in any corporationfull force and effect, partnership, joint venture or other business enterprise other than SCB's Subsidiaries;
(g) any customer, dealer, distributor, marketing or development agreement currently in force under which SCB or any of its Subsidiaries has continuing all material obligations to provide any product, technology or service and that may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement entered into outside the ordinary course pursuant to which SCB or any of its Subsidiaries have continuing material obligations to develop any Intellectual Property that may not be canceled without penalty upon notice of ninety (90) days or less;
(h) any agreement, contract or commitment currently in force and entered into outside the ordinary course of business to provide source code to any third party for any product or technology that is material to SCB or any of its Subsidiaries;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 individually;
(j) any material settlement or release agreement entered into within two (2) years prior to the date of this Agreement;
(k) any agreement entered into in the ordinary course of business providing for annualized revenue to SCB or any of its Subsidiaries of more than $500,000; or
(l) any written or oral contract for hire which obligates SCB or any of its Subsidiaries to work on a fixed-fee basis regardless of the number of hours actually spent on the project by the SCB or Subsidiary employees (a "Fixed Fee Contract"), and, to the best of SCB's knowledge, no Fixed-Fee Contract would reasonably be expected as of the Effective Time to cost SCB or any of its Subsidiaries more in expenses and wages payable to its employees than fees and revenues generated by the Fixed-Fee Contract except where the cost of completing such Fixed Fee Contracts, individually or in the aggregate, would not reasonably be expected to result in an SCB Material Adverse Effect. SCB and its Subsidiaries are not, nor to SCB's knowledge is any other party to a Contract, in breach, violation or default under, and neither SCB nor any of its Subsidiaries have received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any contract that is required to be disclosed on Schedule 3.10 and Schedule 3.13 above in such a manner as would permit any other party to cancel or terminate any such Contract, or would permit any other party to seek material damages or other remedies.required
Appears in 1 contract
Contracts; Debt Instruments. Except (a) Set forth on Schedule 3.18(a) of the Disclosure Letter are the following contracts (such contracts, together with the contracts filed as set forth exhibits to the Company Reports, are collectively referred to as the “Material Contracts”):
(i) The current list of contracts maintained by the Company in Schedule 3.10 the ordinary course of business for financial reporting purposes;
(ii) contracts that involve a sharing of profits, losses, costs or Schedule 3.13liabilities with other Persons;
(iii) contracts with respect to any partnership, joint venture or strategic alliance with any other Person;
(iv) all employment agreements other than those that are terminable at will by the Company without liability to the Company or any of its Subsidiaries with respect to such termination in excess of $100,000, all severance agreements providing for severance payments in excess of $100,000, and all director or officer indemnification agreements;
(v) contracts containing covenants purporting to limit the freedom of the Company or any of its Subsidiaries, or that will limit the freedom of Parent, the Surviving Corporation or any of their Subsidiaries, to compete in any line of business in any geographic area or to solicit customers, clients or employees, other than (A) covenants restricting solicitation of employees of customers or suppliers and (B) customary covenants not to compete in a limited geographic area entered into by the Company or its Subsidiaries in connection with the sale of retail locations and associated convenience stores; or
(vi) upon which the Company’s business is substantially dependent or the termination or cancellation of which would reasonably be expected to have a Material Adverse Effect. As of the date of this Agreement, neither SCB the Company nor any of its Subsidiaries is a party to or bound by:by any contract that is material to the conduct of their respective business other than the Material Contracts.
(ab) Neither the Company nor any of its Subsidiaries is in violation of or in default under (nor does there exist any condition which with the passage of time or the giving of notice or both would cause such a violation of or default under) any employmentMaterial Contract to which it is a party or by which it or any of its properties or assets is bound except for such violations or defaults that would not result in a material liability to the Company or otherwise have a Material Adverse Effect. Each Material Contract is in full force and effect, severance and is a legal, valid and binding obligation of the Company or consulting agreementits Subsidiaries, contract as applicable, and each of the other parties thereto, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or commitment other similar laws now or hereafter in effect relating to or limiting creditors’ rights generally and general principles of equity and except as would not result in a material liability to the Company and has not had and would not reasonably be expected to have a Material Adverse Effect. No condition exists or event has occurred that (whether with or without notice or lapse of time or both) would reasonably be expected to constitute a default by any executive officer other party thereto under any Material Contract or higher level employee that would result in a right of termination of any Material Contract except for any such defaults or member terminations that would not result in a material liability to the Company and have not had and would not reasonably be expected to have a Material Adverse Effect.
(c) Schedule 3.18(c) of SCB's board the Disclosure Letter lists all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments as of directors, other than those that are terminable by SCB the date hereof pursuant to which any indebtedness of the Company or any of its Subsidiaries on no more than thirty (30) days' notice without liability in excess of $1,000,000 is outstanding or financial obligation to SCB;
(b) any agreement or planmay be incurred, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any indicating the respective principal amounts outstanding thereunder as of the benefits of which will be increased, or date hereof and the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in the ordinary course of business;respective maturity dates.
(d) any agreementThere is no contract, contract commitment, judgment, injunction, order or commitment containing any covenant limiting in any material respect decree to which the right of SCB Company or any of its Subsidiaries is a party or subject to engage in any line that has had or would reasonably be expected to have the effect of prohibiting or impairing the conduct of business or to compete with any Person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment that directly or indirectly prevents SCB or any of its Subsidiaries from providing services to or performing work for competitors of any customer of SCB by the Company or any of its Subsidiaries or any other similar restriction imposed on SCB contract that may be terminable as a result of Parent’s or any of its Subsidiaries by Parent’s Subsidiaries’ status as a customer;
(f) competitor of any agreementparty to such contract, contract or commitment currently except, in force relating to the disposition or acquisition by SCB or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which SCB or any of its Subsidiaries has any material ownership interest in any corporationeach case, partnership, joint venture or other business enterprise other than SCB's Subsidiaries;
(g) any customer, dealer, distributor, marketing or development agreement currently in force under which SCB or any of its Subsidiaries has continuing material obligations to provide any product, technology or service and that may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement entered into outside the ordinary course pursuant to which SCB or any of its Subsidiaries have continuing material obligations to develop any Intellectual Property that may not be canceled without penalty upon notice of ninety (90) days or less;
(h) any agreement, contract or commitment currently in force and entered into outside the ordinary course of business to provide source code to any third party for any product prohibition, impairment or technology termination right that is material to SCB or any of its Subsidiaries;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 individually;
(j) any material settlement or release agreement entered into within two (2) years prior to the date of this Agreement;
(k) any agreement entered into in the ordinary course of business providing for annualized revenue to SCB or any of its Subsidiaries of more than $500,000; or
(l) any written or oral contract for hire which obligates SCB or any of its Subsidiaries to work on a fixed-fee basis regardless of the number of hours actually spent on the project by the SCB or Subsidiary employees (a "Fixed Fee Contract"), and, to the best of SCB's knowledge, no Fixed-Fee Contract would reasonably be expected as of the Effective Time to cost SCB or any of its Subsidiaries more in expenses has not had and wages payable to its employees than fees and revenues generated by the Fixed-Fee Contract except where the cost of completing such Fixed Fee Contracts, individually or in the aggregate, would not reasonably be expected to result in an SCB have a Material Adverse Effect. SCB and its Subsidiaries are not, nor to SCB's knowledge is any other party to a Contract, in breach, violation or default under, and neither SCB nor any of its Subsidiaries have received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any contract that is required to be disclosed on Schedule 3.10 and Schedule 3.13 above in such a manner as would permit any other party to cancel or terminate any such Contract, or would permit any other party to seek material damages or other remedies.
Appears in 1 contract
Contracts; Debt Instruments. Except as set forth in Schedule 3.10 or Schedule 3.13, neither SCB ARIS nor or any of its Subsidiaries is a party to or bound by:
(a) any employment, severance employment or consulting agreement, contract or commitment with any executive officer or higher level employee or member of SCBARIS's board of directors, other than those that are terminable by SCB ARIS or any of its Subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to SCBARIS;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in the ordinary course of business;
(d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of SCB ARIS or any of its Subsidiaries to engage in any line of business or to compete with any Person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment that directly or indirectly prevents SCB ARIS or any of its Subsidiaries from providing services to or performing work for competitors of any customer of SCB ARIS or any of its Subsidiaries or any other similar restriction imposed on SCB ARIS or any of its Subsidiaries by a customer;
(f) any agreement, contract or commitment currently in force relating to the disposition or acquisition by SCB ARIS or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which SCB ARIS or any of its Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than SCBARIS's Subsidiaries;
(g) any customer, dealer, distributor, marketing or development agreement currently in force under which SCB ARIS or any of its Subsidiaries has continuing material obligations to provide any product, technology or service and that may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement entered into outside the ordinary course pursuant to which SCB ARIS or any of its Subsidiaries have continuing material obligations to develop any Intellectual Property that may not be canceled without penalty upon notice of ninety (90) days or less;
(h) any agreement, contract or commitment currently in force and entered into outside the ordinary course of business to provide source code to any third party for any product or technology that is material to SCB ARIS or any of its Subsidiaries;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 100,000 individually;
(j) any material settlement or release agreement entered into within two (2) years prior to the date of this Agreement;
; or (k) any agreement entered into in the ordinary course of business providing for annualized revenue to SCB ARIS or any of its Subsidiaries of more than $500,000; or
(l) any written or oral contract for hire which obligates SCB or any of its Subsidiaries to work on a fixed-fee basis regardless of the number of hours actually spent on the project by the SCB or Subsidiary employees (a "Fixed Fee Contract"), and, to the best of SCB's knowledge, no Fixed-Fee Contract would reasonably be expected as of the Effective Time to cost SCB or any of its Subsidiaries more in expenses and wages payable to its employees than fees and revenues generated by the Fixed-Fee Contract except where the cost of completing such Fixed Fee Contracts, individually or in the aggregate, would not reasonably be expected to result in an SCB Material Adverse Effect. SCB and its Subsidiaries are not, nor to SCB's knowledge is any other party to a Contract, in breach, violation or default under, and neither SCB nor any of its Subsidiaries have received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any contract that is required to be disclosed on Schedule 3.10 and Schedule 3.13 above in such a manner as would permit any other party to cancel or terminate any such Contract, or would permit any other party to seek material damages or other remedies.
Appears in 1 contract
Contracts; Debt Instruments. (a) Except for the agreements listed on Schedule 4.18(a) of the First Avenue Disclosure Letter and for those filed as set forth in Schedule 3.10 or Schedule 3.13exhibits to First Avenue Reports (“First Avenue Material Contracts”), neither SCB First Avenue nor any of its Subsidiaries is a party to or bound byby any contract:
(ai) any employmentthat provides for, severance or consulting agreementis reasonably likely to provide for, contract either individually or commitment in the aggregate with any executive officer related contracts, payments by or higher level employee or member of SCB's board of directors, other than those that are terminable by SCB or any of to First Avenue and its Subsidiaries on no in an aggregate amount of $250,000 or more than thirty (30) days' notice without liability or financial obligation to SCBin any 12 month period;
(bii) any agreement as licensor or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any licensee (except for site licenses and standard non-exclusive hardware and software licenses granted to end-user customers in the ordinary course of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreementbusiness);
(ciii) for the lease of any material agreement of indemnification real or any guaranty personal property other than any agreement of indemnification tower leases entered into in the ordinary course of business;
(div) that involves a sharing of profits, losses, costs or liabilities with other persons;
(v) with respect to any agreementpartnership, contract joint venture or commitment containing strategic alliance with any covenant limiting in other person;
(vi) involving a guaranty by First Avenue and its Subsidiaries for the benefit of any material other person;
(vii) all employment, consulting and independent contractor agreements other than those that are terminable at will and with respect the right of SCB or to which neither First Avenue nor any of its Subsidiaries have any liability, and all severance agreements and director or officer indemnification agreements;
(viii) containing covenants purporting to engage limit First Avenue’s and its Subsidiaries’, or that will limit First Avenue’s and its Subsidiaries’, freedom to compete in any line of business in any geographic area or to compete with any Person solicit customers, clients or granting any exclusive distribution rightsemployees (other than covenants restricting solicitation of employees of customers or suppliers);
(eix) upon which First Avenue’s business is substantially dependent or the termination or cancellation of which would reasonably be expected to have a First Avenue Material Adverse Effect; or
(x) encumbrances on any First Avenue Authorizations (as defined below).
(b) Neither First Avenue nor any of its Subsidiaries is in violation of or in default under (nor does there exist any condition which with the passage of time or the giving of notice or both would cause such a violation of or default under) any agreement, contract First Avenue Material Contract to which it is a party or commitment that directly or indirectly prevents SCB by which it or any of its properties or assets is bound, except for such violations or defaults that would not result in a material liability to First Avenue or otherwise have a First Avenue Material Adverse Effect. Except as disclosed on Schedule 4.18(a) of the First Avenue Disclosure Letter, each First Avenue Material Contract is in full force and effect, and is a legal, valid and binding obligation of First Avenue and its Subsidiaries from providing services and each of the other parties thereto, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws now or hereafter in effect relating to or performing work for competitors limiting creditors’ rights generally and general principles of any customer of SCB or any of its Subsidiaries or any other similar restriction imposed on SCB or any of its Subsidiaries by a customer;
(f) any agreement, contract or commitment currently equity and except as would not result in force relating to the disposition or acquisition by SCB or any of its Subsidiaries after the date of this Agreement of a material amount of assets liability to First Avenue and has not in the ordinary course of business or pursuant to which SCB or any of its Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than SCB's Subsidiaries;
(g) any customer, dealer, distributor, marketing or development agreement currently in force under which SCB or any of its Subsidiaries has continuing material obligations to provide any product, technology or service had and that may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement entered into outside the ordinary course pursuant to which SCB or any of its Subsidiaries have continuing material obligations to develop any Intellectual Property that may not be canceled without penalty upon notice of ninety (90) days or less;
(h) any agreement, contract or commitment currently in force and entered into outside the ordinary course of business to provide source code to any third party for any product or technology that is material to SCB or any of its Subsidiaries;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 individually;
(j) any material settlement or release agreement entered into within two (2) years prior to the date of this Agreement;
(k) any agreement entered into in the ordinary course of business providing for annualized revenue to SCB or any of its Subsidiaries of more than $500,000; or
(l) any written or oral contract for hire which obligates SCB or any of its Subsidiaries to work on a fixed-fee basis regardless of the number of hours actually spent on the project by the SCB or Subsidiary employees (a "Fixed Fee Contract"), and, to the best of SCB's knowledge, no Fixed-Fee Contract would reasonably be expected as of the Effective Time to cost SCB or any of its Subsidiaries more in expenses and wages payable to its employees than fees and revenues generated by the Fixed-Fee Contract except where the cost of completing such Fixed Fee Contracts, individually or in the aggregate, would not reasonably be expected to result in an SCB have a First Avenue Material Adverse Effect. SCB and its Subsidiaries are not, nor No condition exists or event has occurred that (whether with or without notice or lapse of time or both) would reasonably be expected to SCB's knowledge is constitute a default by any other party to thereto under any First Avenue Material Contract or that would result in a right of termination of any First Avenue Material Contract, except for any such defaults or terminations that would not result in breacha material liability to First Avenue and have not had and would not reasonably be expected to have a First Avenue Material Adverse Effect
(c) There are no loan or credit agreements, violation notes, bonds, mortgages, indentures and other agreements and instruments as of the date hereof pursuant to which any indebtedness of First Avenue is outstanding or default undermay be incurred.
(d) There is no contract, and neither SCB nor commitment, judgment, injunction, order or decree to which First Avenue or any of its Subsidiaries is a party or subject to that has had or would reasonably be expected to have received written notice that it has breached, violated the effect of prohibiting or defaulted under, any impairing the conduct of the material terms business by First Avenue and its Subsidiaries or conditions of any contract that is required to may be disclosed on Schedule 3.10 and Schedule 3.13 above in such terminable as a manner result of First Avenue’s or its Subsidiaries’ status as would permit a competitor of any other party to cancel such contract, except, in each case, for any prohibition, impairment or terminate any such Contract, or termination right that would permit any other party not reasonably be expected to seek material damages or other remedieshave a First Avenue Material Adverse Effect.
Appears in 1 contract
Contracts; Debt Instruments. Except (i) Schedule 3.1(l)(i) to the Company Disclosure Letter contains a list of the following Contracts the Company or any of the Company’s Subsidiaries is party thereto or by which any Company Property, the Company, any of the Company’s Subsidiaries or any of their respective properties or assets are bound as set forth in Schedule 3.10 of the date hereof:
(A) any lease of personal property with third parties other than the Company or Schedule 3.13any of the Company’s Subsidiaries, neither SCB nor providing for annual rentals of $500,000 or more;
(B) Other than the Lease Documents (defined below) any lease, sublease, license or occupancy agreement of real property with third parties other than the Company or any of the Company’s Subsidiaries, providing for annual rentals of $500,000 or more;
(C) any Contract for the purchase of materials, supplies, goods, services, equipment or other assets that is not terminable without penalty on thirty (30) days’ notice by the Company or any of the Company’s Subsidiaries and that provides for or is reasonably likely to require either (x) annual payments from the Company and the Company’s Subsidiaries of $250,000 or more, or (y) aggregate payments from the Company and the Company’s Subsidiaries of $500,000 or more;
(D) any partnership, limited liability company agreement, joint venture or other similar agreement or arrangement relating to the formation, creation, operation, management or control of any partnership or joint venture which is not a wholly-owned Subsidiary of the Company;
(E) any Contract under which indebtedness for borrowed money is outstanding or may be incurred or that provides for a guarantee of the obligations of any Person or pursuant to which any property or asset of the Company or any of its Subsidiaries is mortgaged, pledged or otherwise subject to a party to or bound by:
(a) any employmentLien, severance or consulting agreement, contract or commitment with any executive officer or higher level employee or member of SCB's board of directors, other than those that are terminable by SCB or any Contract restricting the incurrence of its Subsidiaries on no more than thirty (30) days' notice without liability indebtedness or financial obligation to SCBthe incurrence of Liens or restricting the payment of dividends or the transfer of any Company Property;
(bF) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any Contract currently required to be filed as an exhibit to the Company’s Annual Report on Form 10–K pursuant to Item 601(b)(10) of Regulation S–K under the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this AgreementSecurities Act;
(cG) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in the ordinary course of business;
(d) any agreement, contract or commitment containing any covenant limiting Contract that purports to limit in any material respect the right of SCB the Company or any of its the Company’s Subsidiaries (1) to engage in any line of business business, or (2) to compete with any Person or granting operate in any exclusive distribution rightslocation;
(eH) any agreementContract providing for the sale or exchange of, contract or commitment that option, right of first refusal or offer, or similar right, to sell or exchange, any Company Property, or for the purchase or exchange of, or option, right of first refusal or offer, or similar right to purchase or exchange, any real estate entered into in the past two years or in respect of which the applicable transaction had not been consummated or the option or right remains outstanding;
(I) any Contract entered into in the past two years or in respect of which the applicable transaction had not been consummated for the acquisition or disposition, directly or indirectly prevents SCB (by merger or otherwise), of assets (other than Contracts referenced in clause (H) of this Section 3.1(l)(i)) or capital stock or other equity interests of another Person for aggregate consideration in excess of $250,000, in each case other than in the Ordinary Course of Business;
(J) other than the Management Agreement Documents, any of its Subsidiaries from providing services Contract pursuant to or performing work for competitors of any customer of SCB or which the Company, any of its Subsidiaries or any other similar restriction imposed on SCB Person manages any real property;
(K) other than Contracts for ordinary repair and maintenance, any Contract relating to the development or construction of, or additions or expansions to, the Company Properties, under which the Company or any of its Company’s Subsidiaries by a customerhas, or expects to incur, an obligation in excess of $500,000 in the aggregate that has not been satisfied as of the date hereof;
(fL) any agreement, contract or commitment currently in force relating to the disposition or acquisition by SCB or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant Contract to which SCB or any of its Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than SCB's Subsidiaries;
(g) any customer, dealer, distributor, marketing or development agreement currently in force under which SCB the Company or any of its Subsidiaries has continuing material indemnification or purchase price obligations or potential liability under any purchase price adjustment that, in each case could reasonably be expected to provide any product, technology or service and that may not be canceled without penalty upon notice result in future payments of ninety (90) days or less, more than $250,000 or any Contract relating to the settlement or proposed settlement of any suit, action, claim, hearing, arbitration, investigation or other proceeding, which involves the issuance of equity securities or the payment of any cash or other consideration, in any such case, having a value of more than $250,000;
(M) any Contract that provides for any unpaid settlement or proposed settlement of any suit, action, claim, hearing, arbitration, investigation or other proceeding in which the amount to be paid in settlement is in excess of $250,000;
(N) any license, royalty or other Contract concerning Intellectual Property which is material agreement entered into outside to the ordinary course pursuant Company and its Subsidiaries;
(O) any Contract that is material to which SCB the Company and its Subsidiaries, taken as a whole, and contains any so-called “most favored nations” or similar provisions requiring the Company or any of its Subsidiaries have continuing material obligations to develop offer a Person any Intellectual Property terms or conditions that may not be canceled without penalty upon notice of ninety (90) days or lessare at least as favorable as those offered to any other Person;
(hP) any agreement, contract or commitment currently in force and entered into outside the ordinary course of business to provide source code to any third party for any product or technology that is material to SCB or any of its Subsidiaries;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements advertising or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 individually;
(j) any material settlement or release agreement entered into within two (2) years prior to the date of this Agreement;
(k) any agreement entered into in the ordinary course of business promotional Contract providing for annualized revenue to SCB payment by the Company or any of its Subsidiaries of more than $500,000250,000 or more; orand
(lQ) any written Contract (other than Contracts referenced in clauses (A) through (P) of this Section 3.1(l)(i)) which by its terms calls for payments by or oral contract for hire which obligates SCB liability of the Company or any of its Subsidiaries in excess of $500,000 other than any Contract under this clause (Q) that, by its terms, is terminable within 90 days of this Agreement (without termination fee or penalty). The Contracts required to work be identified on a fixed-fee basis regardless of the number of hours actually spent on the project by the SCB or Subsidiary employees (a "Fixed Fee Contract"), and, Schedule 3.1(l)(i) to the best of SCB's knowledgeCompany Disclosure Letter, no Fixed-Fee Contract would reasonably be expected as of the Effective Time to cost SCB or any of its Subsidiaries more Lease Documents, Franchise Agreements and the Management Agreement Documents, in expenses each case together with all exhibits and wages payable to its employees than fees schedules thereto being, the “Material Contracts.”
(ii) Except for such breaches and revenues generated by the Fixed-Fee Contract except where the cost of completing such Fixed Fee Contractsdefaults as, individually or in the aggregate, would not reasonably be expected to result in an SCB a Company Material Adverse Effect. SCB and its Subsidiaries are not, nor to SCB's knowledge is any other party to a Contract, in breach, violation or default under, and (A) neither SCB the Company nor any of its Subsidiaries have received written notice that it has breachedis and, violated to the Knowledge of the Company, no other party is in breach or defaulted violation of, or default under, any Material Contract, (B) none of the material Company or any of the Company’s Subsidiaries has received any claim of default under any such Material Contract in the two years preceding the date of this Agreement, and (C) no event has occurred which would result in a breach or violation of, or a default under, any Material Contract (in each case, with or without notice or lapse of time or both). Each Material Contract is valid, binding and enforceable in accordance with its terms and is in full force and effect. The Company has made available to Buyer true, correct and complete copies of all Material Contracts, including any amendments or conditions supplements thereto.
(iii) Schedule 3.1(l)(iii) to the Company Disclosure Letter contains a complete and correct list of all Contracts, transactions and liabilities between the Company or any of its Subsidiaries, on the one hand, and (A) any current or former officer or director of the Company or any of its Subsidiaries, (B) any holder of more than 1% of any contract class of shares of capital stock of the Company, (C) any associate (as defined in Rule 12b-2 under the Exchange Act) or Affiliate of any such officer, director or holder (other than any such Affiliate that is required to be disclosed the Company or a Subsidiary of the Company), on Schedule 3.10 and Schedule 3.13 above the other hand (collectively, the “Related Party Transactions”). None of (x) the current or former officers or directors of the Company or any of its Subsidiaries, (y) the holders of more than 1% of any class of shares of capital stock of the Company, or (z) the associates (as defined in Rule 12b-2 under the Exchange Act) or Affiliates of such a manner as would permit any officer, director or holder (other party to cancel or terminate than any such ContractAffiliate that is the Company or a Subsidiary of the Company) (1) owes any amount to the Company or any of its Subsidiaries (nor does the Company or any of its Subsidiaries owe any amount to, or would permit has the Company or any other party of its Subsidiaries committed to seek make any loan or extend or guarantee credit to, or for the benefit of, any such officer, director or holder or any such associate or Affiliate thereof); (2) owns any property or right, tangible or intangible, that is used by the Company or any of its Subsidiaries; (3) has any cause of action against the Company or any of its Subsidiaries; (4) controls or is a director or officer of any Person which is a competitor, material damages supplier, material customer, landlord or other remediestenant of the Company or any of its Subsidiaries.
Appears in 1 contract
Contracts; Debt Instruments. Except as set forth in Schedule 3.10 or Schedule 3.13, neither SCB ALPHANET nor any of its Subsidiaries is a party to or bound by:
(a) any employment, severance employment or consulting agreement, contract or commitment with any executive officer or higher level employee or member of SCB's ALPHANET’s board of directors, other than those that are terminable by SCB ALPHANET or any of its Subsidiaries on no more than thirty (30) 30 days' ’ notice without liability or financial obligation to SCBALPHANET;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in the ordinary course of businessbusiness that may not be canceled by ALPHANET or any of its Subsidiaries without penalty upon notice of 90 days or less;
(d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of SCB ALPHANET or any of its Subsidiaries to engage in any line of business or to compete with any Person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment that directly or indirectly prevents SCB ALPHANET or any of its Subsidiaries from providing services to or performing work for competitors of any customer of SCB ALPHANET or any of its Subsidiaries or any other similar restriction imposed on SCB ALPHANET or any of its Subsidiaries by a customer;
(f) any agreement, contract or commitment currently in force relating to the disposition or acquisition by SCB ALPHANET or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which SCB ALPHANET or any of its Subsidiaries has have any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than SCB's ALPHANET’s Subsidiaries;
(g) any customer, dealer, distributor, marketing or development agreement currently in force under which SCB ALPHANET or any of its Subsidiaries has have continuing material obligations in excess of $100,000 to provide any product, technology or service and that may not be canceled without penalty upon notice of ninety (90) 90 days or less, or any material agreement entered into outside the ordinary course pursuant to which SCB ALPHANET or any of its Subsidiaries have continuing material obligations to develop any Intellectual Property that may not be canceled without penalty upon notice of ninety (90) 90 days or less;
(h) any agreement, contract or commitment currently in force and entered into outside the ordinary course of business to provide source code to any third party for any product or technology that is material to SCB ALPHANET or any of its SubsidiariesSubsidiaries and that may not be canceled by ALPHANET or any of its Subsidiaries without penalty upon notice of 90 days or less;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 individually;
(j) any material settlement or release agreement entered into within two (2) years prior to the date of this Agreement;
(k) any agreement entered into in the ordinary course of business providing for future annualized revenue to SCB ALPHANET or any of its Subsidiaries Subsidiaries, beginning January 1, 2003, of more than $500,000; or
(l) any written or oral contract for hire which obligates SCB ALPHANET or any of its Subsidiaries to work on a fixed-fee basis regardless of the number of hours actually spent on the project by the SCB ALPHANET or Subsidiary employees (a "“Fixed Fee Contract"”), and, to the best of SCB's ALPHANET’s knowledge, no Fixed-Fee Contract would reasonably be expected as of the Effective Time to cost SCB ALPHANET or any of its Subsidiaries more in expenses and wages payable to its employees than fees and revenues generated by the Fixed-Fee Contract except where the cost of completing such Fixed Fee Contracts, individually or in the aggregate, would not reasonably be expected to result in an SCB ALPHANET Material Adverse Effect. SCB ALPHANET and its Subsidiaries are not, nor to SCB's ALPHANET’s knowledge is any other party to a Contractan agreement required to be disclosed on Schedules 3.10 or 3.13, in breach, violation or default under, and neither SCB ALPHANET nor any of its Subsidiaries have received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any contract that is required to be disclosed on Schedule 3.10 and Schedule 3.13 above such agreement in such a manner as would permit any other party to cancel or terminate any such Contractagreement, or would permit any other party to seek material damages or other remedies.
Appears in 1 contract
Contracts; Debt Instruments. Except (a) Set forth on Schedule 3.18(a) of the Disclosure Letter are the following contracts (such contracts, together with the contracts filed as set forth exhibits to the Company Reports, are collectively referred to as the "Material Contracts"):
(i) The current list of contracts maintained by the Company in Schedule 3.10 the ordinary course of business for financial reporting purposes;
(ii) contracts that involve a sharing of profits, losses, costs or Schedule 3.13liabilities with other Persons;
(iii) contracts with respect to any partnership, joint venture or strategic alliance with any other Person;
(iv) all employment agreements other than those that are terminable at will by the Company without liability to the Company or any of its Subsidiaries with respect to such termination in excess of $100,000, all severance agreements providing for severance payments in excess of $100,000, and all director or officer indemnification agreements;
(v) contracts containing covenants purporting to limit the freedom of the Company or any of its Subsidiaries, or that will limit the freedom of Parent, the Surviving Corporation or any of their Subsidiaries, to compete in any line of business in any geographic area or to solicit customers, clients or employees, other than (A) covenants restricting solicitation of employees of customers or suppliers and (B) customary covenants not to compete in a limited geographic area entered into by the Company or its Subsidiaries in connection with the sale of retail locations and associated convenience stores; or
(vi) upon which the Company's business is substantially dependent or the termination or cancellation of which would reasonably be expected to have a Material Adverse Effect. As of the date of this Agreement, neither SCB the Company nor any of its Subsidiaries is a party to or bound by:by any contract that is material to the conduct of their respective business other than the Material Contracts.
(ab) Neither the Company nor any of its Subsidiaries is in violation of or in default under (nor does there exist any condition which with the passage of time or the giving of notice or both would cause such a violation of or default under) any employmentMaterial Contract to which it is a party or by which it or any of its properties or assets is bound except for such violations or defaults that would not result in a material liability to the Company or otherwise have a Material Adverse Effect. Each Material Contract is in full force and effect, severance and is a legal, valid and binding obligation of the Company or consulting agreementits Subsidiaries, contract as applicable, and each of the other parties thereto, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or commitment other similar laws now or hereafter in effect relating to or limiting creditors' rights generally and general principles of equity and except as would not result in a material liability to the Company and has not had and would not reasonably be expected to have a Material Adverse Effect. No condition exists or event has occurred that (whether with or without notice or lapse of time or both) would reasonably be expected to constitute a default by any executive officer other party thereto under any Material Contract or higher level employee that would result in a right of termination of any Material Contract except for any such defaults or member terminations that would not result in a material liability to the Company and have not had and would not reasonably be expected to have a Material Adverse Effect.
(c) Schedule 3.18(c) of SCB's board the Disclosure Letter lists all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments as of directors, other than those that are terminable by SCB the date hereof pursuant to which any indebtedness of the Company or any of its Subsidiaries on no more than thirty (30) days' notice without liability in excess of $1,000,000 is outstanding or financial obligation to SCB;
(b) any agreement or planmay be incurred, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any indicating the respective principal amounts outstanding thereunder as of the benefits of which will be increased, or date hereof and the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in the ordinary course of business;respective maturity dates.
(d) any agreementThere is no contract, contract commitment, judgment, injunction, order or commitment containing any covenant limiting in any material respect decree to which the right of SCB Company or any of its Subsidiaries is a party or subject to engage in any line that has had or would reasonably be expected to have the effect of prohibiting or impairing the conduct of business or to compete with any Person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment that directly or indirectly prevents SCB or any of its Subsidiaries from providing services to or performing work for competitors of any customer of SCB by the Company or any of its Subsidiaries or any other similar restriction imposed on SCB contract that may be terminable as a result of Parent's or any of its Subsidiaries by a customer;
(f) any agreement, contract or commitment currently in force relating to the disposition or acquisition by SCB or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which SCB or any of its Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than SCBParent's Subsidiaries;
(g) ' status as a competitor of any customerparty to such contract, dealerexcept, distributorin each case, marketing or development agreement currently in force under which SCB or any of its Subsidiaries has continuing material obligations to provide any product, technology or service and that may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement entered into outside the ordinary course pursuant to which SCB or any of its Subsidiaries have continuing material obligations to develop any Intellectual Property that may not be canceled without penalty upon notice of ninety (90) days or less;
(h) any agreement, contract or commitment currently in force and entered into outside the ordinary course of business to provide source code to any third party for any product prohibition, impairment or technology termination right that is material to SCB or any of its Subsidiaries;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 individually;
(j) any material settlement or release agreement entered into within two (2) years prior to the date of this Agreement;
(k) any agreement entered into in the ordinary course of business providing for annualized revenue to SCB or any of its Subsidiaries of more than $500,000; or
(l) any written or oral contract for hire which obligates SCB or any of its Subsidiaries to work on a fixed-fee basis regardless of the number of hours actually spent on the project by the SCB or Subsidiary employees (a "Fixed Fee Contract"), and, to the best of SCB's knowledge, no Fixed-Fee Contract would reasonably be expected as of the Effective Time to cost SCB or any of its Subsidiaries more in expenses has not had and wages payable to its employees than fees and revenues generated by the Fixed-Fee Contract except where the cost of completing such Fixed Fee Contracts, individually or in the aggregate, would not reasonably be expected to result in an SCB have a Material Adverse Effect. SCB and its Subsidiaries are not, nor to SCB's knowledge is any other party to a Contract, in breach, violation or default under, and neither SCB nor any of its Subsidiaries have received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any contract that is required to be disclosed on Schedule 3.10 and Schedule 3.13 above in such a manner as would permit any other party to cancel or terminate any such Contract, or would permit any other party to seek material damages or other remedies.
Appears in 1 contract
Contracts; Debt Instruments. Except as set forth in Schedule 3.10 or Schedule 3.13, neither SCB ARIS nor or any of its Subsidiaries is a party to or bound by:
(a) any employment, severance employment or consulting agreement, contract or commitment with any executive officer or higher level employee or member of SCBARIS's board of directors, other than those that are terminable by SCB ARIS or any of its Subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to SCBARIS;
(b) any agreement or plan, including, without limitation, any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increased, or the vesting of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any material agreement of indemnification or any guaranty other than any agreement of indemnification entered into in the ordinary course of business;
(d) any agreement, contract or commitment containing any covenant limiting in any material respect the right of SCB ARIS or any of its Subsidiaries to engage in any line of business or to compete with any Person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment that directly or indirectly prevents SCB ARIS or any of its Subsidiaries from providing services to or performing work for competitors of any customer of SCB ARIS or any of its Subsidiaries or any other similar restriction imposed on SCB ARIS or any of its Subsidiaries by a customer;
(f) any agreement, contract or commitment currently in force relating to the disposition or acquisition by SCB ARIS or any of its Subsidiaries after the date of this Agreement of a material amount of assets not in the ordinary course of business or pursuant to which SCB ARIS or any of its Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than SCBARIS's Subsidiaries;
(g) any customer, dealer, distributor, marketing or development agreement currently in force under which SCB ARIS or any of its Subsidiaries has continuing material obligations to provide any product, technology or service and that may not be canceled without penalty upon notice of ninety (90) days or less, or any material agreement entered into outside the ordinary course pursuant to which SCB ARIS or any of its Subsidiaries have continuing material obligations to develop any Intellectual Property that may not be canceled without penalty upon notice of ninety (90) days or less;
(h) any agreement, contract or commitment currently in force and entered into outside the ordinary course of business to provide source code to any third party for any product or technology that is material to SCB ARIS or any of its Subsidiaries;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit in excess of $50,000 100,000 individually;
(j) any material settlement or release agreement entered into within two (2) years prior to the date of this Agreement;; or
(k) any agreement entered into in the ordinary course of business providing for annualized revenue to SCB ARIS or any of its Subsidiaries of more than $500,000; or.
(l) any written or oral contract for hire which obligates SCB ARIS or any of its Subsidiaries to work on a fixed-fee basis regardless of the number of hours actually spent on the project by the SCB ARIS or Subsidiary employees (a "Fixed Fixed-Fee Contract"), and, to the best of SCBARIS's knowledge, no Fixed-Fee Contract would reasonably be expected as of the Effective Time to cost SCB ARIS or any of its Subsidiaries more in expenses and wages payable to its employees than fees and revenues generated by the Fixed-Fee Contract except where the cost of completing such Fixed Fee Contracts, individually or in the aggregate, would not reasonably be expected to result in an SCB a ARIS Material Adverse Effect. SCB ARIS and its Subsidiaries are not, nor to SCBARIS's knowledge is any other party to a Contract, in breach, violation or default under, and neither SCB ARIS nor any of its Subsidiaries have received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any contract that is required to be disclosed on Schedule 3.10 and Schedule above SCHEDULE 3.13 above in such a manner as would permit any other party to cancel or terminate any such Contract, or would permit any other party to seek material damages or other remediesremedies (for any or all of such breaches, violations or defaults, in the aggregate).
Appears in 1 contract
Contracts; Debt Instruments. (a) Except as set forth otherwise disclosed in Schedule 3.10 or Schedule 3.13Section 3.18 of the Disclosure Schedule, neither SCB Modtech nor any of its Subsidiaries is a party to or bound bysubject to:
(ai) any collective bargaining or other agreements with labor unions, trade unions, employee representatives, work committees, guilds or associations representing employees of Modtech and its Subsidiaries;
(ii) any employment, severance consulting, severance, termination, or consulting indemnification agreement, contract or commitment arrangement, including any oral agreement, contract or arrangement which requires the payment of over $75,000, with any executive officer current or higher level employee former officer, consultant, director or member employee;
(iii) any lease for real or personal property in which the amount of SCB's board payments which Modtech is required to make, or is expected to receive, on an annual basis exceeds $50,000;
(iv) any agreement, contract, instrument, arrangement or commitment to repurchase assets previously sold or leased, or to indemnify or otherwise compensate the purchaser in respect thereof;
(v) any agreement, contract, policy, license, document, instrument, arrangement or commitment that materially limits the freedom of directors, other than those that are terminable by SCB Modtech or any of its Subsidiaries on no more than thirty (30) days' notice without liability or financial obligation to SCBcompete in any line of business;
(bvi) any agreement or plan, including, without limitation, contract relating to any stock option plan, stock appreciation right plan or stock purchase plan, any of the benefits of which will be increasedoutstanding commitment for material capital expenditures, or any partially or fully executory agreement or contract relating to the vesting acquisition or disposition of benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement rights or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement;
(c) any material agreement of indemnification or any guaranty assets other than any agreement of indemnification those entered into in the ordinary course of businessconsistent with past practices;
(dvii) any sale-leaseback, conditional sale, exclusive dealing, brokerage, finder's fee contract or agreement; or
(viii) any other agreement, contract contract, policy, license, document, instrument, arrangement or commitment containing any covenant limiting in any material respect the right of SCB or any of its Subsidiaries to engage in any line of business or to compete with any Person or granting any exclusive distribution rights;
(e) any agreement, contract or commitment that directly or indirectly prevents SCB or any of its Subsidiaries from providing services to or performing work for competitors of any customer of SCB or any of its Subsidiaries or any other similar restriction imposed on SCB or any of its Subsidiaries by a customer;
(f) any agreement, contract or commitment currently in force relating to the disposition or acquisition by SCB or any of its Subsidiaries after the date of this Agreement of a material amount of assets not made in the ordinary course of business which is material to Modtech and its Subsidiaries taken as a whole and which is not otherwise disclosed in the Disclosure Schedules.
(b) None of Modtech, its Subsidiaries and, to the knowledge of Modtech, none of the other parties to any of the contracts and agreements identified in Sections 3.18(a) and (c) of the Disclosure Schedule or pursuant otherwise disclosed in Modtech SEC Reports is in default under or has terminated any such contract or agreement, or in any way expressed to which SCB Modtech an intent to materially reduce or terminate the amount of its business with Modtech or any of its Subsidiaries has any material ownership interest in any corporation, partnership, joint venture or other business enterprise other than SCB's Subsidiaries;the future.
(gc) Set forth in Section 3.18(c) of the Disclosure Schedule is (A) a list of all loan or credit agreements, notes, bonds, mortgages, indentures and other agreements and instruments pursuant to which any customer, dealer, distributor, marketing or development agreement currently in force under which SCB indebtedness of Modtech or any of its Subsidiaries has continuing material is outstanding or may be incurred, (B) the respective principal amounts currently outstanding thereunder, and (C) any interest rate swaps, caps, floors or option agreements or similar interest rate risk management agreements. Except as set forth in Section 3.18(c) of the Disclosure Schedule, all such indebtedness is prepayable at any time without penalty, subject to the notice provisions of the agreements governing such indebtedness (which, except as set forth in Section 3.18(c)of the Disclosure Schedule, do not require a notice period of more than thirty days). For purposes of this Section 3.18(c), "indebtedness" shall mean, with respect to any Person, without duplication, (A) all obligations to provide any product, technology or service and that may not be canceled without penalty upon notice of ninety (90) days or lesssuch Person for borrowed money, or with respect to deposits or advances of any material agreement entered into outside the ordinary course pursuant kind to such Person, (B) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such Person upon which SCB or any interest charges are customarily paid, (D) all obligations of its Subsidiaries have continuing material obligations to develop any Intellectual Property that may not be canceled without penalty upon notice of ninety (90) days or less;
(h) any agreement, contract or commitment currently in force and entered into outside the ordinary course of business to provide source code to any third party for any product or technology that is material to SCB or any of its Subsidiaries;
(i) any mortgages, indentures, guarantees, loans or credit agreements, security agreements such person under conditional sale or other title retention agreements or instruments relating to property purchased by such Person, (E) all obligations of such Person issued or assumed as the borrowing deferred purchase price of money property or extension services (excluding obligations of credit in excess of $50,000 individually;
(j) any material settlement or release agreement entered into within two (2) years prior such Person to the date of this Agreement;
(k) any agreement entered into creditors for raw materials, inventory, services and supplies incurred in the ordinary course of business providing such Person's business), (F) all capitalized lease obligations of such Person, (G) all indebtedness of others secured by any Lien on property or assets owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (H) all obligations of such Person under interest rate or currency swap transactions (valued at the termination value thereof), (I) all letters of credit issued for annualized revenue the account of such Person, (J) all obligations of such Person to SCB purchase securities (or any other property) which arises out of its Subsidiaries of more than $500,000; or
(l) any written or oral contract for hire which obligates SCB or any of its Subsidiaries to work on a fixed-fee basis regardless in connection with the sale of the number same or substantially similar securities or property, and (K) all guarantees and arrangements having the economic effect of hours actually spent on the project by the SCB or Subsidiary employees (a "Fixed Fee Contract"), and, to the best guarantee of SCB's knowledge, no Fixed-Fee Contract would reasonably be expected as such Person of the Effective Time to cost SCB or any indebtedness of its Subsidiaries more in expenses and wages payable to its employees than fees and revenues generated by the Fixed-Fee Contract except where the cost of completing such Fixed Fee Contracts, individually or in the aggregate, would not reasonably be expected to result in an SCB Material Adverse Effect. SCB and its Subsidiaries are not, nor to SCB's knowledge is any other party to a Contract, in breach, violation or default under, and neither SCB nor any of its Subsidiaries have received written notice that it has breached, violated or defaulted under, any of the material terms or conditions of any contract that is required to be disclosed on Schedule 3.10 and Schedule 3.13 above in such a manner as would permit any other party to cancel or terminate any such Contract, or would permit any other party to seek material damages or other remediesperson.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization and Merger (Modtech Holdings Inc)