Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market value in excess of $50,000 to any one Person (except (i) any Contract entered into in the Ordinary Course of Business for the sale of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 (except any Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership or other Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company with any other Person; (h) any Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or limit the freedom of any Acquired Company to engage in any line of business or to compete with any Person; (i) any Contract providing for payments to or by any Person based on sales, purchases or profits, other than (x) direct payments for goods and (y) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole. 5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract (i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract. 5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Business.
Appears in 2 contracts
Sources: Stock Purchase Agreement (WHX Corp), Stock Purchase Agreement (Worthington Industries Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any The Disclosure Letter contains a complete and accurate list of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market Company of an amount or value in excess of $50,000 250,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person or more Company of an amount or value in excess of $250,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods one or materials by the Acquired more Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 250,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $250,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any collective bargaining or other agreement with any labor union; (g) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hvii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Acquired Affiliate of the Company or limit the freedom of the Company or any Acquired Affiliate of the Company to engage in any line of business or to compete with any Person; ;
(iviii) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each power of attorney that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by the Company to be responsible for consequential damages;
(jxi) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 250,000;
(it being warranted that xii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate)Ordinary Course of Business; and
(nxiii) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing.
(b) Except as set forth in the Disclosure Letter:
(i) Seller (and no Related Person of Seller) has or may acquire any maintenance rights under, and Seller has or service agreements relating may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Assetsassets owned or used by, the Company; and
(sii) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of SellerSeller and the Company, no officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of the Company, or (B) assign to the Company or to any other party theretoPerson any rights to any invention, is in default under any Contract. Each Contractimprovement, or discovery.
(ic) constitutes a valid and binding obligation of Except as set forth in the Acquired Company party thereto andDisclosure Letter, each Contract identified or required to be identified in the Knowledge of Seller, of each other party thereto; and (ii) Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as to set forth in the Acquired Disclosure Letter:
(i) the Company party theretois, andand at all times since January 1, to 1994 has been, in full compliance with all applicable terms and requirements of each Contract under which the Knowledge Company has or had any obligation or liability or by which the Company or any of Seller, as to the assets owned or used by the Company is or was bound;
(ii) each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, no notice toand at all times since January 1, filing or registration with1994 has been, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor the Company has not given to or received from any Related Person of Seller other Person, at any time since January 1, 1994, any notice or other communication (excluding whether oral or written) regarding any of the Acquired Companies) has any rights actual, alleged, possible, or obligations under any Contract with an Acquired Company potential violation or that relates to the Business breach of, or default under, any of Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Assets owned Company under current or used bycompleted Contracts with any Person and, an Acquired Company; and (b) to the Knowledge of SellerSeller and the Company, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice The Contracts relating to the Business of the Acquired Companysale, design, manufacture, or (ii) assign to an Acquired provision of products or services by the Company have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or to in concert with any other Person any rights to any invention, improvementPerson, or discovery any consideration having been paid or promised, that is or would be in connection with the Businessviolation of any Legal Requirement. 3.18. INSURANCE. [RESERVED.]
Appears in 2 contracts
Sources: Share Exchange Agreement (Melita International Corp), Share Exchange Agreement (Melita International Corp)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 3.14(a) of the Disclosure Statement contains a complete and accurate list, and Sellers have, in the case of written Contracts, made available to Buyers true, correct and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired of the Cinemex Companies with a fair market of an amount or value in excess of $50,000 5’000,000 pesos (excluding Contracts that are terminable at any time by giving not more than 30 days prior written notice by a Cinemex Company without penalty or cost to any one Person the Cinemex Companies in excess of $5’000,000 pesos);
(except (iii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods or materials by the Acquired Company at market prices and that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment involves expenditures or other expense liabilities and/or receipts of one or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 more of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Cinemex Companies in excess of $50,000 5’000,000 pesos (excluding Contracts that are terminable at any time by giving not more than 30 days prior written notice by a Cinemex Company without penalty or cost to the Cinemex Companies in excess of $5’000,000 pesos);
(iii) each loan agreement, promissory note, letter of credit or other Applicable Contract evidencing Funded Indebtedness or any guarantee or similar obligation of any Cinemex Company with respect to Funded Indebtedness or any other similar payment obligation of any Person (other than any Cinemex Company);
(iv) each lease, rental or occupancy agreement, license, and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any interest as lessee or other similar interest in, any real or personal property (except any personal property lease having payments of less than $5’000,000 pesos and with a term of less than one (1) year);
(v) each licensing agreement or other Applicable Contract involving payment or receipt of more than $5’000,000 pesos with respect to patents, trademarks, copyrights, or other intellectual property, other than (x) any licensing agreements or other Applicable Contracts entered into by any Cinemex Company in the Ordinary Course of Business for that primarily relate to the purchase exhibition by such Cinemex Company of services, goods, materials a particular motion picture or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement (y) “shrink-wrap” or other software licenses generally available from the Acquired Company, commercial vendors or such other form documents as are ordinarily used to memorialize such a transaction); retailers which do not require ongoing royalty payments;
(evi) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any each collective bargaining or other agreement with any labor union; ;
(gvii) any each joint venture, partnership or venture and other similar Applicable Contract (however named) involving a sharing of profits, profits or losses, costs or liabilities by any Acquired Cinemex Company with any other Person; , excluding Contracts entered into in the Ordinary Course of Business by a Cinemex Company;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of or engagement in any Acquired business activities by any Cinemex Company or limit the freedom any of any Acquired Company to engage in any line of business or to compete with any Person; its affiliates;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods and (y) goods, excluding Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person Cinemex Company;
(x) each Applicable Contract under which a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment Cinemex Company is committed as of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither , for individual Capital Expenditures in excess of $5’000,000 pesos or aggregate Capital Expenditures in excess of $10’000,000 pesos;
(xi) each consulting or other similar Applicable Contract with consultants of any Cinemex Company remaining in effect after the Acquired Companies nor, Closing Date and which are not terminable at the will of the applicable Cinemex Company without cost or liability to any Cinemex Company; and
(xii) all other Applicable Contracts that are material to the Knowledge business of Seller, any other party thereto, is the Cinemex Companies and that are outside the Ordinary Course of Business.
(b) Except as set forth in default under any Contract. Each ContractPart 3.14(b) of the Disclosure Statement:
(i) constitutes a valid each Cinemex Company is, and binding obligation at all times since January 1, 2006 has been, in compliance in all material respects with all material terms and requirements of each Contract identified on Part 3.14(a) of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and Disclosure Statement;
(ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may would reasonably be expected to contravene, conflict with, or result in a violation or breach of of, or give (x) any Acquired Person other than a Cinemex Company or other Person (y) to Sellers’ Knowledge, any Cinemex Company the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.Contract identified on Part 3.14(a) of the Disclosure Statement; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiii) neither Seller nor there are no pending renegotiations of, current attempts to renegotiate, or outstanding rights to renegotiate any Related Person of Seller (excluding material terms and conditions or amounts greater than $5’000,000 pesos paid or payable to any Cinemex Company under any of the Acquired CompaniesContracts identified on Part 3.14(a) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned Disclosure Statement with any Person and no such Person has made written demand for such renegotiation.
(c) The Sellers have made available to Buyer true, correct and complete copies of all written Applicable Contracts referred to in Section 3.14(a) and the ▇▇▇▇▇▇ Separation Agreement together, in each case, with all amendments, modifications and supplements thereto.
(d) Symphony is not a party to or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officercontract, directoragreement, agent instrument or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Businessdocument except for Symphony’s Organizational Documents.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Amc Entertainment Inc), Stock Purchase Agreement (Marquee Holdings Inc.)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Contract for Part 3.17(a) of the purchase Disclosure Letter contains a complete and accurate list, and NorthStar and NorthStar Bank have delivered or sale of Real Property; made available to Buyer true and complete copies, of:
(bi) any each Applicable Contract (or group of related or similar Contractsother than loans) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market of an amount or value in excess of $50,000 50,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person or more Acquired Companies of an amount or value in excess of $50,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods one or materials by the more Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Companies in excess of $50,000 10,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any collective bargaining or other agreement with any labor union; (g) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hvii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any entity that is a Related Person of an Acquired Company or limit the freedom of any Acquired Company or any entity that is a Related Person of an Acquired Company to engage in any line of business or to compete with any Person; ;
(iviii) any each Applicable Contract providing for payments to or by any Person based on sales, purchases or profits, other than ;
(ix) each power of attorney that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) provides for an express undertaking by any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; to be responsible for consequential damages;
(kxi) any each Applicable Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 50,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the aggregate)Ordinary Course of Business; and
(nxiii) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements foregoing. Part 3.17(a) of the Disclosure Letter sets forth reasonably complete details concerning such Applicable Contracts, including the parties to the Applicable Contracts, the amount of the remaining commitment of the Acquired Companies under the Applicable Contracts, and the Acquired Companies’ office where details relating to the Applicable Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) no director, officer or 5% shareholder of an Acquired Company has or may acquire any rights under, and no Acquired Company has or may become subject to any obligation or liability under, any Applicable Contract that relates to the business of, or any of the Assetsassets owned or used by, any Acquired Company; and
(sii) any Contract that involves an account receivable or note receivable to the Knowledge of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeno officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any contract or other arrangement that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies (c) Except as set forth in Part 3.17(c) of the Contracts listed Disclosure Letter, each Applicable Contract identified or required to be identified in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(iPart 3.17(a) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as to set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company party theretois, andand at all times has been, to in full compliance with all applicable terms and requirements of each Applicable Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the Knowledge of Seller, as to assets owned or used by such Acquired Company is or was bound;
(ii) each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Applicable Contract (other than loans made by NorthStar Bank or deposits accepted by NorthStar Bank) under which an Acquired Company has or had any rights is, no notice toand at all times has been, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsApplicable Contract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.Contract (other than loans made by NorthStar Bank or deposits accepted by NorthStar Bank); and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an no Acquired Company has given to or that relates to the Business received from any other Person, at any time, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any of the Assets owned Applicable Contract (other than loans made by NorthStar Bank or used bydeposits accepted by NorthStar Bank).
(e) There are no renegotiations of, an attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company; and Company under current or completed Applicable Contracts (bother than loans made by NorthStar Bank or deposits accepted by NorthStar Bank) to the Knowledge of Sellerwith any Person and, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice The Applicable Contracts relating to the Business provision of services by the Acquired CompanyCompanies have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Enterprise Financial Services Corp), Merger Agreement (Enterprise Financial Services Corp)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.21(a) of the Disclosure Letter contains a complete and accurate list, and Seller has delivered to Buyer true and complete copies, of each written:
(i) Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one to the Company other than sales of Products in the Ordinary Course of Business of an amount or more Acquired Companies with a fair market value in excess of $50,000 to any one Person 100,000 annually;
(except (iii) any Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods and that involves expenditures or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 receipts of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 100,000 annually and which cannot be terminated on 30 days notice without penalty;
(iii) Applicable Contract with a wholesale distributor of magazines in the United States who entered into such Applicable Contract with the Company in such wholesaler's capacity as a wholesale distributor of magazines;
(iv) lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other written Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any Contract entered into in the Ordinary Course personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transactionless than $100,000 annually); ;
(ev) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining agreement and other written Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvi) any joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hvii) any Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or limit the freedom of any Acquired the Company to engage in any line of business or to compete with any Person; ;
(iviii) any Applicable Contract providing for payments in excess of $100,000 annually to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) power of attorney that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 100,000 annually, other than any Applicable Contracts with customers providing for a single project the installation of display fixtures;
(it being warranted that xi) warranty, guaranty, and/or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate)Ordinary Course of Business; and
(nxii) any sale amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any foregoing; in each case other than those Applicable Contracts listed on another Schedule of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeDisclosure Letter.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(ib) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aSchedule 3.21(b) neither Seller nor any Related Person of Seller (excluding any of the Acquired CompaniesDisclosure Letter or as contemplated by the Transaction Documents:
(i) has any rights or obligations under any No Applicable Contract with an Acquired Company or that relates to the Business business of, or any of the Assets assets owned or used by, an Acquired Company; and the Company (bA) provides Seller (or any Related Person of Seller) with any rights, or the ability to acquire any rights, thereunder under, or (B) subjects Seller (or any Related Person of Seller) to any obligation or liability thereunder; and
(ii) No officer or director of the Knowledge of Company, and to Seller's Knowledge, no officer, director, agent, employee, consultant, or employee contractor of an Acquired Company the Company, is bound by any Contract that purports to limit the ability of such officer, director, agent or agent, employee, consultant, or contractor to (iA) engage in or continue any conduct, activity, or practice relating to the Business business of the Acquired Company, or (iiB) assign to an Acquired the Company or to any other Person any rights to any invention, improvement, or discovery discovery.
(c) Except as set forth in Schedule 3.21(c) of the Disclosure Letter, since January 27, 2006, the Company has not received from any Person, any written notice or other written communication or, to the Knowledge of Seller, any oral notice or communication that any Current Customer of the Company as of January 27, 2006 has determined to cease doing business with the Company or materially reduce the volume of Products purchased from the Company.
(d) Except as set forth in Schedule 3.21(d) of the Disclosure Letter, there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate, any material amounts paid or payable to the Company under any Material Applicable Contracts and no such Person has made written demand for such renegotiation, other than in connection with a dispute or the expiration or renewal of such a Contract.
(e) The Material Applicable Contracts relating to the sale, provision of products or services by the Company have been entered into in the Ordinary Course of Business.
Appears in 2 contracts
Sources: Unit Purchase Agreement (Source Interlink Companies Inc), Unit Purchase Agreement (Source Interlink Companies Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) Schedule 3.13(a) contains a complete and accurate list, and Seller has made available to Buyer true and complete copies (excluding certain technical or other contract attachments which are not reasonably necessary for an understanding of the contracts and the terms thereof and the parties’ rights and obligations thereunder), of:
(i) each Contract that involves performance of services or delivery of goods by a Longhorn Entity or the Business during any Contract 12-month period as of the date of this Agreement of an amount or value, individually or, for the purchase or sale of Real Property; (b) any Contract (or group a series of related or similar Contracts, in the aggregate, in excess of $2,000,000;
(ii) each Contract that involves the future performance of services or delivery of goods or materials by one to a Longhorn Entity or more Acquired Companies with the Business during any 12-month period as of the date of this Agreement, of an amount or value, individually or, for a fair market value series of related Contracts, in the aggregate, in excess of $50,000 4,000,000;
(iii) each Contract related to any one Person (except (i) any Contract a Longhorn Entity or the Business that was not entered into in the Ordinary Course of Business for the sale of and that involves goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, services of an acknowledgment from the Acquired Company, amount or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 4,000,000;
(iv) each lease relating to the Real Property Leases and lease of tangible personal property of any Longhorn Entity and other Contracts, in each case, affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any other assets used in the Business (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments, in each case, of less than $1,000,000 and with terms of less than one year);
(v) each material license agreement involving any Contract entered into Longhorn Entity with respect to patents, trademarks, copyrights or other material Intellectual Property used in the Ordinary Course of Business Business, excluding licenses for the purchase of services, goods, materials or inventory by the Acquired Company at market prices software that is represented solely by commercially available from a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used third party pursuant to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining “shrink wrap,” “click-through” or other agreement standard form license agreements with any labor union; an individual one-time or annual royalty or license fee of $100,000 or less;
(gvi) any each joint ventureventure or partnership involving a Longhorn Entity or the Business and each other Contract, partnership or other Contract (however named) in each case involving a sharing of profits, losses, costs or liabilities by any Acquired Company related to the Business with any other Person; ;
(hvii) any each Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company Longhorn Entity or limit the freedom of any Acquired Company Business;
(viii) each Contract related to engage in any line of business or to compete with any Person; (i) any Contract the Business providing for payments to or by any Person based on sales, purchases or profits, other than (x) direct payments for goods and with a value less than $1,000,000;
(yix) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any each Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for related to the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale 4,000,000 from and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on after the date of this Agreement. Neither ;
(x) each Contract entered into or assumed by a Longhorn Entity after January 1, 2007 in which a Longhorn Entity has an obligation in respect of providing for indemnification or purchase price adjustment in connection with any disposition, sale or other transfer of any present or former business or commercial activity and with respect to which any party thereto has continuing material obligations;
(xi) each Contract that contains a provision involving a change of control of a Longhorn Entity requiring the Acquired Companies norconsent of a third party to, or giving a third party the right to terminate following, such change of control and that is material to the Knowledge Longhorn Entities taken as a whole;
(xii) each Contract under which a Longhorn Entity has directly or indirectly guaranteed Indebtedness or Liabilities (other than endorsements for the purpose of Sellercollection in the Ordinary Course Of Business) of any Person other than a Longhorn Entity which, any other party theretoindividually, is in default under any Contract. Each Contractexcess of $1,000,000;
(ixiii) constitutes each Contract granting any Encumbrance (other than a valid and binding obligation of the Acquired Company party thereto andPermitted Encumbrance) upon any asset, property or right that is material to the Knowledge of Seller, of Longhorn Entities taken as a whole;
(xiv) each other party thereto; and (ii) is in full force and effect as Contract relating to the Acquired Company party theretoBusiness that is a distributor, andagency, dealer, sales representative or similar Contract;
(xv) each Contract relating to the Knowledge Business that is an advertising or marketing Contract and that is material to the Business taken as a whole;
(xvi) each Contract between a Longhorn Entity on the one hand, and Seller or any Affiliate of SellerSeller (other than a Longhorn Entity) on the other hand;
(xvii) each Contract that is for services with any employee, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration withdirector, or Consent ofconsultant and any such oral agreements which are not terminable at will by a Longhorn Entity; and
(xviii) each amendment, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2supplement, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect modification (without breach by the Acquired Companies of, whether oral or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount written) in respect of such Contract as a result any of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contractforegoing.
5.15.3. (b) Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business ofon Schedule 3.13(b), or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, employee or employee consultant of an Acquired Company any Longhorn Entity is bound by any Contract that purports to limit the ability of such officer, director, agent agent, employee or employee, consultant to (iA) engage in or continue any conduct, activity, activity or practice relating related to the Business of the Acquired Company, or (iiB) assign to an Acquired Company or to any other Person any rights to any invention, improvement, improvement or discovery related to the Business.
(c) Each Contract identified on Schedule 3.13(a) is in full force and effect and is valid and enforceable against the Longhorn Entity party thereto and, to the Knowledge of Seller, against each other party thereto in accordance with its terms, except to the extent enforceability may be limited by (i) bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting creditors’ rights generally and (ii) general principles of equity, regardless of whether asserted in a proceeding in equity or at law.
(d) For each Contract identified on Schedule 3.13(a) and except as set forth on Schedule 3.13(d):
(i) each Longhorn Entity is in compliance in all material respects with all terms and requirements of each such Contract (other than provisions relating to maintaining the confidentiality of such terms to the extent violated by disclosures of such terms to prospective purchasers of the Business in connection with the Businesssale of the Business to Buyer);
(ii) to the Knowledge of Seller, each other Person that has or had any obligation or Liability under any such Contract is in compliance in all material respects with all terms and requirements of such Contract; and
(iii) since January 1, 2010, no Longhorn Entity has given to or received from any other Person any written notice or other communication regarding the termination of or any actual or alleged material violation or breach of, or material default under, any such Contract.
(e) Except as set forth on Schedule 3.13(e), there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate, any amounts paid or payable to any Longhorn Entity in excess of $2,000,000 under Contracts remaining to be performed as of the date of this Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Rowan Companies Inc), Stock Purchase Agreement (Joy Global Inc)
Contracts; No Defaults. 5.15.1. (a) Except as set forth in SCHEDULE 5.15.1 on Section 2.12(a) of the Company Disclosure Schedule or filed as disclosed in this Agreementan exhibit to the Company SEC Documents, no Acquired there is no:
(i) Company is a party to or bound by: (a) any Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more any of the Acquired Companies with a fair market of an amount or value in excess of $50,000 500,000;
(ii) Company Contract that involves performance of services or delivery of goods or materials to any one Person of the Acquired Companies of an amount or value in excess of $500,000;
(except (iiii) any Company Contract that was not entered into in the Ordinary Course of Business for and that involves the sale expenditure or receipt by any of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, Companies of an acknowledgment from the Acquired Company, amount or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 500,000;
(except any iv) Company Contract entered into that is a (A) mortgage, indenture, note, installment obligation or other instrument relating to the borrowing of money or (B) letter of credit, bond or other indemnity (including letters of credit, bonds or other indemnities as to which Company is the beneficiary but excluding endorsements of instruments for collection in the Ordinary Course of Business Business);
(v) Company Contract affecting the ownership of, leasing of, title to, use of, or any other interest in any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $500,000);
(vi) material Company Contract with respect to Intellectual Property (including Contracts with current or former employees, consultants or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property) except for the purchase of services, goods, materials or inventory any license implied by the sale of a product and perpetual, paid-up licenses for commonly available software programs with a value of less than $500,000 under which any of the Acquired Companies is the licensee, and the list identifies those pursuant to which an Acquired Company at market prices that is represented solely uses Intellectual Property owned by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); third party;
(evii) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement material Company Contract with any labor union; (g) any joint venture, partnership union or other employee representative of a group of employees;
(viii) Company Contract (however named) other than Company Plans involving a sharing of profits, losses, costs or liabilities Liabilities by any of the Acquired Company Companies with any other Person; ;
(hix) any Company Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or limit the freedom of any of the Acquired Company Companies to engage in any line of business or to compete with any Person; (i) any Contract providing for payments to or by any Person based on sales, purchases or profits, other than and
(x) direct payments for goods and (y) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Company Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole2,500,000.
5.15.2. Seller (b) Company has furnished or made available to Buyer complete and correct copies Parent a copy of each Company Contract listed on Section 2.12(a) of the Contracts listed Company Disclosure Schedule or filed as an exhibit to the Company SEC Documents.
(c) Each Company Contract set forth in SCHEDULES 5.11.2Section 2.12(a) of the Company Disclosure Schedule or filed as an exhibit to the Company SEC Documents and material to Company's business is in full force and effect and is valid and enforceable in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, 5.12insolvency, 5.13.2 AND 5.15.1reorganization, as moratorium, fraudulent transfer and similar Laws of general applicability relating to or affecting creditors' rights or by general equity principles), except where failure to be in full force and effect on the date or failure to be valid and enforceable does not have, and is not reasonably likely to have, a Company Material Adverse Effect. Except where such Contravention does not have, and is not reasonably likely to have, a Company Material Adverse Effect: (i) none of this Agreement. Neither the Acquired Companies nor, to Company's Knowledge any other party to a Company Contract has Contravened any of the applicable terms of a Company Contract, (ii) no event has occurred or circumstance exists that (with or without notice or lapse of time) would constitute or result directly or indirectly in Contravention of any Company Contract by Company or, to Company's Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
and (iiii) constitutes a valid and binding obligation to Company's Knowledge, none of the Acquired Companies has given or received any written notice or other communication alleging Contravention of any Company party thereto and, to Contract.
(d) Each Drilling Contract or each Company Contract that provides for the Knowledge construction of Seller, of each other party thereto; and a Company Drilling Rig a (ii"Rig Contract") is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge and is valid and enforceable in accordance with its terms and (i) none of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies ofnor, or giving to Company's Knowledge, any contractual other party to a right to terminate or modify such Drilling Contract or require the payment of Rig Contract has Contravened any penalty or other amount in respect of such Contract as a result of the consummation applicable terms of the Contemplated Transactionsa Drilling Contract or Rig Contract, (ii) following the consummation of the Contemplated Transactions. No to Company's Knowledge, no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, constitute or result directly or indirectly in a violation Contravention of any Drilling Contract or breach Rig Contract, and (iii) none of the Acquired Companies has given or give any Acquired Company received written notice or other Person the right to declare a default communication regarding any actual, alleged or exercise potential Contravention of any remedy under, Drilling Contract or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Rig Contract.
5.15.3. Except (e) To Company's Knowledge, as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companiesdate of this Agreement, no party to a Company Contract listed on Section 2.12(a) of the Company Disclosure Schedule or filed as an exhibit to the Company SEC Documents and material to Company's business has repudiated it. As of the date of this Agreement, there currently are no renegotiations of, to Company's Knowledge, attempts to renegotiate or outstanding material rights to renegotiate any Company Contracts listed on Section 2.12(a) of the Company Disclosure Schedule or filed as an exhibit to the Company SEC Documents and material to Company's business, nor has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Businesswritten demand for renegotiation been made.
Appears in 2 contracts
Sources: Merger Agreement (Chiles Offshore Inc/New/), Merger Agreement (Ensco International Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Company has made available to Buyer:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market Company;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Company of an amount or value in excess of $50,000 to any one Person 5,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods one or materials by the Acquired more Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 5,000;
(except any iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract entered into in affecting the Ordinary Course of Business for the purchase of servicesownership of, goodsleasing of, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase ordertitle to, an acknowledgement from the Acquired Companyuse of, or such any leasehold or other form documents as are ordinarily used interest in, any real or personal property;
(v) each licensing agreement or other Applicable Contract with respect to memorialize such a transaction); (e) patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any collective bargaining or other agreement with any labor union; (g) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hvii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Acquired Affiliate of the Company or limit the freedom of the Company or any Acquired Affiliate of the Company to engage in any line of business or to compete with any Person; ;
(iviii) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each power of attorney that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by the Company to be responsible for consequential damages;
(jxi) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 5,000;
(it being warranted that xii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate)Ordinary Course of Business; and
(nxiii) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any foregoing.
(b) To the knowledge of the Assets; (s) any Company, each Contract that involves an account receivable identified or note receivable of more than $100,000; and (t) any other Contract which is material required to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or be made available to Buyer complete in Part 3.13(a) above is in full force and correct copies of the Contracts listed effect and is valid and enforceable in SCHEDULES 5.11.2accordance with its terms.
(c) There are no renegotiations of, 5.12attempts to renegotiate, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, or outstanding rights to renegotiate any material amounts paid or payable to the Knowledge of Seller, Company under current or completed Contracts with any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto Person and, to the Knowledge of Seller, of each other party thereto; Company and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2Company, no notice to, filing or registration with, or Consent of, any such Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify has made written demand for such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contractrenegotiation.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Business.
Appears in 2 contracts
Sources: Exchange Agreement and Mutual Release (Gabriel Technologies Corp), Securities Exchange Agreement (Gabriel Technologies Corp)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Exhibit C contains an accurate and complete list, and Seller has delivered to Buyer accurate and complete copies, of:
(i) each Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one Seller of an amount or more Acquired Companies with a fair market value in excess of One hundred dollars ($50,000 100.00);
(ii) each Contract that involves performance of services or delivery of goods or materials to any one Person Seller of an amount or value in excess of One hundred dollars (except $100.00);
(iiii) any each Contract that was not entered into in the Ordinary Course ordinary course of Business for the sale business and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Seller in excess of One hundred dollars ($50,000 100.00);
(iv) each Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than One hundred dollars ($100.00) and with a term of less than one year);
(v) each Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(vi) each Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company Seller with any other Person; person or entity;
(hvii) any each Contract containing covenants that in any way purport to restrict the Seller's business activity of any Acquired Company or limit the freedom of any Acquired Company Seller to engage in any line of business or to compete with any Person; person or entity;
(iviii) any each Contract providing for payments to or by any Person person or entity based on sales, purchases or profits, other than (x) direct payments for goods or services;
(ix) each power of attorney of Seller that is currently effective and outstanding;
(yx) Contracts each Contract entered into other than in the Ordinary Course ordinary course of Business with employees and other sales personnel paying commissions business that contains or bonuses; provides for an express undertaking by Seller to be responsible for consequential damages;
(jxi) any each Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of One hundred dollars ($250,000 for a single project 100.00);and
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xii) each amendment, supplement and modification (whether oral or written) in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing.
(b) No shareholder of Seller has or may acquire any maintenance rights under, and no shareholder of Seller has or service agreements relating may become subject to any obligation or liability under, any Contract that relates to the business of Seller or any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished (c) Each Contract identified or made available required to Buyer complete and correct copies of the Contracts listed be identified in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) Exhibit C is in full force and effect as and is valid and enforceable in accordance with its terms. Each Contract identified or required to be identified in Exhibit C is assignable by Seller to Buyer without the Acquired Company party thereto, and, to consent of any other Person. To the Knowledge knowledge of Seller, as no Contract identified or required to be identified in Exhibit C will upon completion or performance thereof have a material adverse affect on the business, assets or condition of Seller or the business to be conducted by Buyer with the Assets.
(d) Seller is, and at all times since June 30, 2002, has been, in compliance with all applicable terms and requirements of each Contract which is being assumed by Buyer. Each other party thereto. Except as separately identified on SCHEDULE 5.15.2person or entity that has or had any obligation or liability under any Contract which is being assigned to Buyer is, no notice toand at all times since June 30, filing or registration with2002, or Consent ofhas been, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated TransactionsContract. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, with or result in a violation or breach of of, or give any Acquired Company Seller or other Person person or entity the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Applicable Contract.
5.15.3Contract that is being assigned to or assumed by Buyer. Except as set forth in SCHEDULE 5.15.3: No event has occurred or circumstance exists under or by virtue of any Contract that (awith or without notice or lapse of time) neither Seller nor would cause the creation of any Related Person of Seller (excluding encumbrance affecting any of the Acquired CompaniesAssets. Seller has not given to or received from any other person or entity, at any time since June 30, 2002, any notice or other communication (whether oral or written) has regarding any rights actual, alleged, possible or obligations under any Contract with an Acquired Company potential violation or that relates to the Business breach of, or any of the Assets owned or used bydefault under, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports which is being assigned to limit or assumed by Buyer.
(e) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Seller under current or completed Contracts with any person or entity having the ability of contractual or statutory right to demand or require such officer, director, agent renegotiation and no such person or employee, to entity has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice Each Contract relating to the Business sale or provision of products or services by Seller has been entered into in the Acquired Companyordinary course of business of Seller and has been entered into without the commission of any act alone or in concert with any other person or entity, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the Businesslegal requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.19 attached hereto contains a complete and accurate list, and the Sellers have delivered to the Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 (pound)10,000;
(ii) each Applicable Contract (other than those Applicable Contracts entered into with the Buyer) that involves performance of services or delivery of goods or materials to any one Person the Company of an amount or value in excess of (except pound)10,000;
(iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods and that involves expenditures or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 receipts of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 (pound)10,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than (pound)10,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Acquired Related Person of the Company or limit the freedom of any Acquired Related Person of the Company to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by the Company to be responsible for consequential damages;
(jxii) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that pound)10,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements foregoing.
(b) Schedule 3.19 sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Company under the Contracts, and the Company's office where details relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeContracts are located.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed (c) Except as set forth in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractSchedule 3.19:
(i) constitutes a valid no Seller (and binding no Related Person of any Seller) has or may acquire any rights under, and no Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Acquired Company party thereto assets owned or used by, the Company; and, to the Knowledge of Seller, of each other party thereto; and
(ii) no officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of the Company, or (B) assign to the Company or to any other Person any rights to any invention, improvement, or discovery.
(d) Except as set forth in Schedule 3.19, each Contract identified or required to be identified in Schedule 3.19 is in full force and effect and is valid and enforceable in accordance with its terms.
(e) Except as to set forth in Schedule 3.19:
(i) the Acquired Company party theretois, andand at all times since June 30, to 1990 has been, in full compliance with all applicable terms and requirements of each Contract under which the Knowledge Company has or had any obligation or liability or by which the Company or any of Seller, as to the assets owned or used by the Company is or was bound; 38
(ii) each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, no notice toand at all times since June 30, filing or registration with1990 has been, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor the Company has not given to or received from any Related Person of Seller other Person, at any time since June 30, 1990, any notice or other communication (excluding whether oral or written) regarding any of the Acquired Companies) has any rights actual, alleged, possible, or obligations under any Contract with an Acquired Company potential violation or that relates to the Business breach of, or default under, any of the Assets owned Contract.
(f) There are no renegotiations of, attempts to renegotiate, or used by, an Acquired Company; and (b) outstanding rights to renegotiate any material amounts paid or payable to the Knowledge of Seller, Company under current or completed Contracts with any Person and no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(ig) engage in or continue any conduct, activity, or practice The Contracts relating to the Business of the Acquired Companysale, design, manufacture, or (ii) assign to an Acquired provision of products or services by the Company have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or to in concert with any other Person any rights to any invention, improvementPerson, or discovery any consideration having been paid or promised, that is or would be in connection with the Businessviolation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market of an amount or value in excess of $50,000 $ ;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person or more Acquired Companies of an amount or value in excess of $ ;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods one or materials by the more Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Companies in excess of $50,000 $ ;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $ year); and with terms of less than one
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate of an Acquired Company or limit the freedom of any Acquired Company or any Affiliate of an Acquired Company to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) provides for an express undertaking by any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; to be responsible for consequential damages;
(kxii) any each Applicable Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project $ ;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements foregoing. Part 3.17(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Assetsassets owned or used by, any Acquired Company; and
(sii) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, [to the Knowledge of SellerSellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other party theretoPerson any rights to any invention, is in default under any Contract. Each Contractimprovement, or discovery.
(ic) constitutes a valid and binding obligation Except as set forth in Part 3.17(c) of the Acquired Company party thereto andDisclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Knowledge of Seller, of each other party thereto; and (ii) Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as to set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company party theretois, andand at all times since , to 19 has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the Knowledge of Seller, as to assets owned or used by such Acquired Company is or was bound;
(ii) each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, no notice toand at all times since , filing or registration with19 has been, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an no Acquired Company has given to or that relates to the Business received from any other Person, at any time since , 19 , any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any of the Assets owned Contract.
(e) There are no renegotiations of, attempts to renegotiate, or used byoutstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and [, an Acquired Company; and (b) to the Knowledge of Seller, Sellers and the Acquired Companies,] no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice The Contracts relating to the Business sale, design, manufacture, or provision of products or services by the Acquired CompanyCompanies have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Sources: Stock Purchase Agreement
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.11(a) contains a complete and accurate list, and the Sellers have delivered to Altisource U.S. true and complete copies, of: (i) each Contract for included in the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) Acquired Enterprise that involves the future performance of services or delivery of goods or materials by one the Sellers or more Acquired the Companies with a fair market of an amount or value in excess of Five Thousand Dollars ($50,000 5,000.00) or having a noncancellable term of more than 60 days; (ii) each Contract included in the Acquired Enterprise that involves performance of services or delivery of goods or materials to the Sellers or the Companies of an amount or value in excess of Five Thousand Dollars ($5,000.00) or having a noncancellable term of more than 60 days; (iii) each Contract included in the Acquired Enterprise pursuant to which the Sellers or the Companies license other persons to use any of the assets of the Acquired Enterprise or has agreed to support, maintain, upgrade, enhance, modify, or consult with respect to any one Person such assets; (except iv) each Contract included in the Acquired Enterprise pursuant to which other persons license the Sellers or the Companies to use the Licensed Software; (iv) any each Contract included in the Acquired Enterprise that was not entered into in the Ordinary Course of Business for the Course; (vi) each license, lease, installment and conditional sale of goods or materials by agreement, and other Contract included in the Acquired Company at market prices that is represented solely by a customer purchase orderEnterprise affecting the ownership of, an acknowledgment from the Acquired Companyleasing of, title to, use of, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment any leasehold or other expense interest in, any of the assets of the Sellers or other significant impact on such Acquired Company)the Companies; (cvii) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 (except any Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any each joint venture, partnership or partnership, and other Contract (however named) included in the Acquired Enterprise involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company the Sellers or the Companies with any other Person; (hviii) any each Contract included in the Acquired Enterprise containing covenants that in any way purport to materially restrict the business activity of any Acquired Company the Sellers or the Companies, or limit the freedom of any Acquired Company the Sellers or the Companies to engage in any line of business or to compete with any Person; (iix) any Contract providing for payments to each power of attorney included in the Acquired Enterprise of the Sellers or by any Person based on sales, purchases or profits, other than the Companies that is currently effective and outstanding; (x) direct payments for goods and (y) Contracts entered into each Contract included in the Ordinary Course Acquired Enterprise of Business with employees and other sales personnel paying commissions the Sellers or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment Companies for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000expenditures; and (txi) any each material written warranty, guaranty, and or other Contract which is material similar undertaking included in the Acquired Enterprise with respect to the Acquired Sellers, the Companies, as a wholeor the Business (collectively, the “Material Contracts”).
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed (b) Except as set forth in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
Schedule 3.11(b): (i) constitutes a valid the Sellers and binding obligation the Companies have complied with all material terms and requirements of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party theretoMaterial Contracts; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired Company the Sellers, the Companies or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired CompaniesMaterial Contracts; (iii) has the Sellers and the Companies have not given to or received from any rights other Person any notice or obligations under other communication (whether oral or written) regarding any Contract with an Acquired Company actual, alleged, possible, or that relates to the Business potential material violation or breach of, or any of default under, the Assets owned or used byMaterial Contracts; (iv) each Material Contract is legal, an Acquired Companyvalid, binding, enforceable, and in full force and effect; (v) the Sellers and (b) the Companies have not, and to the Knowledge of Sellerthe Sellers, no officerparty to any Material Contract has, directorrepudiated any material provision thereof; and (vi) there are no material disputes, agentoral agreements, or employee of an Acquired Company is bound by forbearance programs in effect as to any Contract that purports Material Contract.
(c) There are no material renegotiations of, attempts to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activityrenegotiate, or practice relating outstanding rights to renegotiate any material amounts paid or payable to the Business Sellers or the Companies under the Material Contracts, with any Person and to the Knowledge of the Acquired CompanySellers, or (ii) assign to an Acquired Company or to any other no such Person any rights to any invention, improvement, or discovery in connection with the Businesshas made written demand for such renegotiation.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.21(a) of the Disclosure Letter contains a complete and accurate list, and Seller has delivered to Buyer true and complete copies, of each written:
(i) Applicable Contract for the purchase or sale of Real Property; with each Material Customer;
(bii) any Applicable Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one to the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 to any one Person 500,000 annually;
(except (iiii) any Applicable Contract that was not entered into in the Ordinary Course ordinary course of Business for the sale of goods business and that involves expenditures or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 receipts of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 250,000 annually and which cannot be terminated on 60 days notice without penalty;
(iv) Applicable Contract with a wholesale distributor of magazines in the United States who entered into such Applicable Contract with the Company in such wholesaler's capacity as a wholesale distributor of magazines;
(v) lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other written Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any Contract entered into in the Ordinary Course personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transactionless than $100,000 annually); ;
(evi) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining agreement and other written Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hviii) any Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or limit the freedom of any Acquired the Company to engage in any line of business or to compete with any Person; ;
(iix) any Applicable Contract providing for payments in excess of $100,000 annually to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods power of attorney that is currently effective and outstanding;
(yxi) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 100,000 annually, other than any Applicable Contracts with customers providing for a single project the installation of display fixtures;
(it being warranted that xii) warranty, guaranty, and/or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate)ordinary course of business; and
(nxiii) any sale amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any foregoing; in each case other than those Applicable Contracts listed on another Schedule of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeDisclosure Letter.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(ib) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aSchedule 3.21(b) neither Seller nor any Related Person of Seller (excluding any of the Acquired CompaniesDisclosure Letter or as contemplated by the Transaction Documents:
(i) has any rights or obligations under any No Applicable Contract with an Acquired Company or that relates to the Business business of, or any of the Assets assets owned or used by, an Acquired Company; and the Company (bA) provides Seller (or any Related Person of Seller) with any rights, or the ability to acquire any rights, thereunder under, or (B) subjects Seller (or any Related Person of Seller) to any obligation or liability thereunder; and
(ii) No officer or director of the Knowledge of Company, and to Seller's Knowledge, no officer, director, agent, employee, consultant, or employee contractor of an Acquired Company the Company, is bound by any Contract that purports to limit the ability of such officer, director, agent or agent, employee, consultant, or contractor to (iA) engage in or continue any conduct, activity, or practice relating to the Business business of the Acquired Company, or (iiB) assign to an Acquired the Company or to any other Person any rights to any invention, improvement, or discovery discovery.
(c) Except as set forth in Schedule 3.21(c) of the Disclosure Letter, since October 31, 2004, the Company has not received from any Person, any written notice or other written communication or, to the Knowledge of Seller, any oral notice or communication that any Material Customer has determined to cease doing business with the Company or materially reduce the volume of Products purchased from the Company.
(d) Except as set forth in Schedule 3.21(d) of the Disclosure Letter, there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate, any material amounts paid or payable to the Company under any Material Applicable Contracts and no such Person has made written demand for such renegotiation, other than in connection with a dispute or the Businessexpiration or renewal of such a Contract.
(e) The Material Applicable Contracts relating to the sale, provision of products or services by the Company have been entered into in the ordinary course of business.
(f) The Material Customers in the aggregate accounted for not less than 80% of the Company's net revenues in the Company's last fiscal year.
Appears in 1 contract
Sources: Unit Purchase Agreement (Source Interlink Companies Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 5.19(a) contains an accurate and complete list, and Buyer has delivered to Seller accurate and complete copies, of the following Contracts, which are referred to herein as “Material Buyer Contracts”:
(i) each Buyer Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one Buyer of an amount or more Acquired Companies with a fair market value in excess of One Hundred Thousand Dollars ($50,000 100,000);
(ii) each Buyer Contract that involves performance of services or delivery of goods or materials to any one Person Buyer of an amount or value in excess of One Hundred Thousand Dollars (except $100,000);
(iiii) any each Buyer Contract that was not entered into in the its Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Buyer in excess of One Hundred Thousand Dollars ($50,000 100,000);
(iv) each Buyer Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than One Hundred Thousand Dollars ($100,000) and with a term of less than one year);
(v) each Buyer Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(vi) each Buyer Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company Buyer with any other Person; ;
(hvii) any each Buyer Contract containing covenants that in any way purport to restrict the Buyer’s business activity of any Acquired Company or limit the freedom of any Acquired Company Buyer to engage in any line of business or to compete with any Person; ;
(iviii) any each Buyer Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Buyer that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts each Buyer Contract entered into other than in the its Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by Buyer to be responsible for consequential damages;
(jxi) any each Buyer Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of One Hundred Thousand Dollars ($250,000 for a single project 100,000);
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Buyer other than in the aggregate)its Ordinary Course of Business; and
(nxiii) any sale each amendment, supplement and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing. Part 5.19(a) sets forth the parties to each Material Buyer Contract, the effective date of each Material Buyer Contract, the term of each Material Buyer Contract, the goods or services to which each Material Buyer Contract relates and the amount of the remaining commitment of Buyer under each Material Buyer Contract.
(b) Except as set forth in Part 5.19(b), no stockholder of Buyer has or may acquire any maintenance rights under, and no stockholder of Buyer has or service agreements relating may become subject to any of the Assets; (s) obligation or liability under, any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material relates to the Acquired Companies, as a wholebusiness of Buyer or any of its assets.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed (c) Except as set forth in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractPart 5.19(c):
(i) constitutes a valid each Material Buyer Contract identified or required to be identified in Part 5.19(a) has not been orally modified in any material respect (other than as described in Part 5.19(c)) and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect and is valid and enforceable in accordance with its terms except, as to the Acquired Company any party thereto, and, to the Knowledge of other than such Seller, as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally and as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies; and
(ii) each other party thereto. Except as separately such Material Buyer Contract identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed required to be identified in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or Part 5.19(a) does not require the payment receipt of consent of any penalty or other amount in respect of such Contract Person as a result of the consummation contemplated Transactions.
(d) Except as set forth in Part 5.19(d):
(i) Buyer is, and at all times since January 1, 2003, has been, in compliance with all material terms and requirements of the Contemplated Transactionseach Material Buyer Contract;
(ii) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of SellerBuyer, fact each other Person that has any obligation or liability under any Material Buyer Contract, and at all times since January 1, 2003, has been, in full compliance with all material terms and requirements of such Material Buyer Contract;
(iii) to the Knowledge of Buyer, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, with or result in a violation or breach of Breach of, or give any Acquired Company Buyer or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Applicable Material Buyer Contract., except where the occurrence of such event or existence of such circumstance would not have a Buyer Material Adverse Effect;
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (biv) to the Knowledge of SellerBuyer, no officerevent has occurred or circumstance exists under or by virtue of any Material Buyer Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any of its assets which would have a Buyer Material Adverse Effect; and
(v) Buyer has not given to or received from any other Person, directorat any time since January 1, agent2003, any written notice or other written communication regarding any actual, alleged, possible or potential violation or Breach of, or employee of an Acquired Company is bound by default under, any Material Buyer Contract.
(e) There are no renegotiations of, written requests to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Buyer under any Buyer Contracts.
(f) Each Buyer Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the sale, design, manufacture or provision of products or services by Buyer has been entered into in the Ordinary Course of Business of Buyer and has been entered into without the Acquired Companycommission of any act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Section 3.17(a) of the Disclosure Letter contains a complete and accurate list, including the parties to the contract and, with respect to the contracts disclosed pursuant to subsection (a)(i) below, the remaining contract ceiling and funded backlog of each such contract, and Sellers have delivered or made available to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 100,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person the Company of an amount or value in excess of $100,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods and that involves expenditures or materials receipts by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 50,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any Contract entered into personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $50,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract, other than licensing agreements with respect to commonly available software programs with a value, in the Ordinary Course aggregate, of Business for less than $50,000 under which the purchase of servicesCompany is the licensee, goodswith respect to patents, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase ordertrademarks, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets.
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Acquired Affiliate of the Company or limit the freedom of the Company or any Acquired Affiliate of the Company to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by the Company to be responsible for consequential damages;
(jxii) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 50,000;
(it being warranted that xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company; and
(xiv) each amendment, supplement, and modification (whether oral or written) in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any foregoing.
(b) Except as set forth in Section 3.17(b) of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractDisclosure Letter:
(i) constitutes a valid and binding obligation None of the Acquired Company party thereto andSellers (and no Related Person of Seller) has or may acquire any rights under or has or may become subject to any obligation or liability under, any Contract that relates to the Knowledge business of, or any of Sellerthe assets owned or used by, of each other party theretothe Company; and and
(ii) no officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of the Company, or (B) assign to the Company or to any other Person any rights to any invention, improvement, or discovery.
(c) To Sellers' Knowledge, except as set forth in Section 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Section 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as to set forth in Section 3.17(d) of the Acquired Disclosure Letter:
(i) the Company party theretois, andand at all times since the date of the respective Contract (including any Contracts which have been superseded by the present Contracts) (A) has been, to in full compliance in all material respects with all applicable terms and requirements of each Contract under which the Knowledge Company has or had any obligation or liability or by which the Company or any of Sellerthe assets owned or used by the Company is or was bound, as (B) has complied in all respects with all Legal Requirements pertaining to each other party thereto. Except as separately identified on SCHEDULE 5.15.2Contract, no notice toand (C) any representations and certifications executed, filing acknowledged or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2in or pertaining to each Contract were complete and correct in all material respects as of their effective date;
(ii) to Sellers' Knowledge, 5.12each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, 5.13.2 AND 5.15.1 continue and at all times since the inception of such contract has been, in full force compliance with all material terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may could reasonably be expected to contravene, conflict with, or result in a material violation or breach of of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract; and
(iv) the Company since the date of the respective Contract (including any Contracts which have been superseded by the present Contracts), has not given to or received from any other Person, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any material Contract.
5.15.3(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Company have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement. To Sellers' Knowledge, all active delivery orders under all such Contracts can be completed at a profit, within the time specified therein, utilizing only personnel now employed by and (other than the purchase of inventory in the Ordinary Course of Business)assets now owned by the Company.
(g) Except as set forth in SCHEDULE 5.15.3: Section 3.17(g) of the Disclosure Letter:
(aA) the Company has complied with all terms and conditions of each Government Contract or Government Subcontract in all material respects, (B) the Company has complied in all respects with all Legal Requirements or agreements pertaining to each Government Contract or Government Subcontract and (C) all representations and certifications executed, acknowledged or set forth in or pertaining to each Government Contract or Government Subcontract were complete and correct in all respects as of their effective date and the Company has complied in all respects with all such representations and certifications;
(ii) (A) neither Seller the U.S. Government nor any Related prime contractor, subcontractor or other Person has notified the Company, either in writing or orally, that the Company has breached or violated any Legal Requirement, certification, representation, clause, provision or other requirement pertaining to any Government Contract or Government Subcontract, (B) no termination for convenience, termination for default, cure notice or show cause notice is currently in effect pertaining to any Government Contract or Government Subcontract, (C) no material cost incurred by the Company pertaining to any Government Contract or Government Subcontract has been questioned or challenged by representatives of Seller the Administrative Contracting Officer or the Defense Contract Audit Agency, has been disallowed by the U.S. Government, or has been or now is, the subject of any investigation, and (D) no amount of money due to the Company, pertaining to any Government Contract or Government Subcontract has been withheld or set off nor has any claim been made to withhold or set off money, and the Company is entitled to all progress payments received with respect thereto;
(A) neither the Company nor any of its directors, officers or employees, or, to the Sellers' Knowledge, its consultants or agents is or during the past three years has been under administrative, civil or criminal investigation, indictment or information by any Governmental Body with respect to any alleged irregularity, misstatement or omission arising under or relating to any Government Contract or Government Subcontract, and (B) during the past five (5) years, the Company has not conducted or initiated any internal investigation or made a voluntary disclosure to any Governmental Body with respect to any alleged irregularity, misstatement or omission arising under or relating to a Government Contract or Government Subcontract;
(iv) there exist (A) no outstanding claims against the Company, either by any Governmental Body or by any prime contractor, subcontractor, vendor or other Person, arising under or relating to any Government Contract or Government Subcontract and (B) no material disputes between the Company and any Governmental Body under the Contract Disputes Act or any other federal statute or regulation or between the Company and any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Subcontract;
(v) the Company has no interest in any pending or potential claim against any Governmental Body or any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Subcontract, and Section 3.17(g) of the Disclosure Letter lists each Government Contract or Government Subcontract which is currently under audit by any Governmental Body or any other person that is a party to such Government Contract or Government Subcontract; and
(vi) the Company has not been debarred or suspended from participation in the award of contracts with the DOD or any other Governmental Body (excluding any for this purpose ineligibility to bid on certain contracts due to generally applicable bidding requirements), there exist no facts or circumstances that would warrant suspension or debarment or the finding of non-responsibility or ineligibility on the part of the Acquired Companies) Company, no payment has any rights or obligations under any Contract with an Acquired been made by the Company or that relates to by any Person on behalf of the Business Company in connection with any Governmental Contract or Governmental Subcontract in violation of applicable procurement Legal Requirements or in violation of, or any of requiring disclosure pursuant to, the Assets owned or used byForeign Corrupt Practices Act, an Acquired and the Company; 's cost accounting and (b) procurement systems and the associated entries reflected in the Company's financial records with respect to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage Government Contracts and Government Subcontracts are in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery compliance in connection all material respects with the Businessall Legal Requirements.
Appears in 1 contract
Sources: Stock Purchase Agreement (Edo Corp)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any SECTION 2.7(a) of the Seller Disclosure Schedule contains a complete and accurate list, and Seller has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by Seller or one or more Other Acquired Companies with a fair market of an amount or value in excess of $50,000 10.000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any Seller or one Person or more Other Acquired Companies of an amount or value in excess of $10,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods and that involves expenditures or materials receipts by the Seller or one or more Other Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Companies in excess of $50,000 10,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement and other Applicable Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any real or personal property (except any Contract entered into in the Ordinary Course personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of Business for the purchase less than $10,000 and with terms of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (eless than one year) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; one or more Other Acquired Company;
(fv) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights or other intellectual property, including agreements with current or former employees, consultants or contractor regarding the appropriation or the nondisclosure of any of Intellectual Property of Seller or one or more Other Acquired Company;
(vi) each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees of Seller or any Other Acquired Company;
(gvii) any each joint venture, partnership or and other Applicable Contract (however named) involving a sharing of profits, losses, costs or liabilities by Seller or any Other Acquired Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of Seller or any Other Acquired Company or any Affiliate of Seller or any Other Acquired Company or limit the freedom of Seller or any Other Acquired Company or any Affiliate of Seller or any Other Acquired Company to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney on behalf of Seller or any Other Acquired Company that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) provides for an express undertaking by Seller or any Contract which provides for, or relates to, the incurrence by an Other Acquired Company to be responsible for consequential damages;
(xii) each Applicable Contract for capital expenditures by Seller or any other Acquired Company in excess of Indebtedness; $10,000;
(kxiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller or any Contract that was not entered into Other Acquired Company other than in the Ordinary Course of Business Business; and
(xiv) each amendment, supplement and modification (whether oral or that was entered into at a price or prices materially written) in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeforegoing.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Business.
Appears in 1 contract
Sources: Merger Agreement (Ubrandit Com)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.16(a) contains a complete and accurate list of: ----------------
(A) subject to (i)(B) below, each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials involved payment by one or more Acquired Companies with a fair market to any third party of an amount or value in excess of $US$50,000 during the calendar year ended December 31, 2001 or that is reasonably expected to involve payment by the one or more Acquired Companies to any third party of more than US$50,000 during the calendar year ending December 31, 2002;
(B) each employment contract entered into by one or more of the Acquired Companies that involves payment of more than US$50,000 to any person in any one Person (except (i) any Contract entered into in the Ordinary Course of Business for the sale of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or calendar year;
(ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any each Applicable Contract that is involved payment to one or more Acquired Companies by any third party of an output, requirements amount or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $US$50,000 (except any Contract entered into in during the Ordinary Course of Business for the purchase of servicescalendar year ended December 31, goods, materials 2001 or inventory by the Acquired Company at market prices that is represented solely reasonably expected to involve payment to one or more Acquired Companies by a purchase orderany third party of more than US$50,000 during the calendar year ending December 31, an acknowledgement from 2002;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other contract affecting the Acquired Companyownership of, leasing of, title to, or such any leasehold or other form documents as are ordinarily used interest in, any real or personal property;
(iv) each licensing agreement or other contract with respect to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customersIntellectual Property Assets, suppliers, officers, directors, including agreements with current or former employees, Sellerconsultants, Affiliates or contractors regarding the appropriation or the non-disclosure of Seller or others; intellectual property rights;
(fv) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvi) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company Company, with any other Person; ;
(hvii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or to limit the freedom of any Acquired Company to engage in any line of business or to compete with any Person; ;
(iviii) any Contract providing for payments each written warranty, guaranty, and or other similar undertaking with respect to or contractual performance extended by any Person based on sales, purchases or profits, Acquired Company other than (x) direct payments for goods and (y) Contracts entered into in the Ordinary Course ordinary course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by business for an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures amount in excess of $250,000 for a single project US$50,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (nix) any sale each non-competition agreement, non-solicitation agreement and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any confidentiality agreement that restricts runs to the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing benefit of any of the Assets or any maintenance or service agreements relating Acquired Companies with regard to any the business of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole;
(x) each Applicable Contract relating to indebtedness for an amount in excess of US$50,000;
(xi) each Applicable Contract with any Governmental Authority; and
(xii) each Applicable Contract between or among any Acquired Company and Seller or any Acquired Company and any Affiliate of any Acquired Company.
5.15.2. Seller has furnished (b) Except as set forth in Schedule 3.16(b), each contract identified ---------------- or made available required to Buyer complete and correct copies of the Contracts listed be identified in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (iiSchedule 3.16(a) is in full force and effect effect. ----------------
(c) To Seller's knowledge, except as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2in Schedule 3.16(c), 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No ---------------- no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business ofterminate, or modify any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage contract identified in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Business.Schedule 3.16(a). ----------------
Appears in 1 contract
Sources: Stock Purchase Agreement (Measurement Specialties Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Exhibit C contains an accurate and complete list, and Seller has delivered to Buyer accurate and complete copies, of:
(i) each Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one Seller of an amount or more Acquired Companies with a fair market value in excess of One hundred dollars ($50,000 100.00);
(ii) each Contract that involves performance of services or delivery of goods or materials to any one Person Seller of an amount or value in excess of One hundred dollars (except $100.00);
(iiii) any each Contract that was not entered into in the Ordinary Course ordinary course of Business for the sale business and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Seller in excess of One hundred dollars ($50,000 100.00);
(iv) each Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than One hundred dollars ($100.00) and with a term of less than one year);
(v) each Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(vi) each Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company Seller with any other Person; person or entity;
(hvii) any each Contract containing covenants that in any way purport to restrict the Seller's business activity of any Acquired Company or limit the freedom of any Acquired Company Seller to engage in any line of business or to compete with any Person; person or entity;
(iviii) any each Contract providing for payments to or by any Person person or entity based on sales, purchases or profits, other than (x) direct payments for goods or services;
(ix) each power of attorney of Seller that is currently effective and outstanding;
(yx) Contracts each Contract entered into other than in the Ordinary Course ordinary course of Business with employees and other sales personnel paying commissions business that contains or bonuses; provides for an express undertaking by Seller to be responsible for consequential damages;
(jxi) any each Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of One hundred dollars ($250,000 for a single project 100.00);and
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xii) each amendment, supplement and modification (whether oral or written) in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing.
(b) No shareholder of Seller has or may acquire any maintenance rights under, and no shareholder of Seller has or service agreements relating may become subject to any obligation or liability under, any Contract that relates to the business of Seller or any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished (c) Each Contract identified or made available required to Buyer complete and correct copies of the Contracts listed be identified in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) Exhibit C is in full force and effect as and is valid and enforceable in accordance with its terms. Each Contract identified or required to be identified in Exhibit C is assignable by Seller to Buyer without the Acquired Company party theretoconsent of any other Person, and, to except where noted. To the Knowledge knowledge of Seller, as no Contract identified or required to be identified in Exhibit C will upon completion or performance thereof have a material adverse affect on the business, assets or condition of Seller or the business to be conducted by Buyer with the Assets.
(d) Seller is, and at all times since March 31, 2003, has been, in compliance with all applicable terms and requirements of each Contract which is being assumed by Buyer. Each other party thereto. Except as separately identified on SCHEDULE 5.15.2person or entity that has or had any obligation or liability under any Contract which is being assigned to Buyer is, no notice toand at all times since March 31, filing or registration with2003, or Consent ofhas been, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated TransactionsContract. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, with or result in a violation or breach of of, or give any Acquired Company Seller or other Person person or entity the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Applicable Contract.
5.15.3Contract that is being assigned to or assumed by Buyer. Except as set forth in SCHEDULE 5.15.3: No event has occurred or circumstance exists under or by virtue of any Contract that (awith or without notice or lapse of time) neither Seller nor would cause the creation of any Related Person of Seller (excluding encumbrance affecting any of the Acquired CompaniesAssets. Seller has not given to or received from any other person or entity, at any time since March 31, 2003, any notice or other communication (whether oral or written) has regarding any rights actual, alleged, possible or obligations under any Contract with an Acquired Company potential violation or that relates to the Business breach of, or any of the Assets owned or used bydefault under, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports which is being assigned to limit or assumed by Buyer.
(e) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Seller under current or completed Contracts with any person or entity having the ability of contractual or statutory right to demand or require such officer, director, agent renegotiation and no such person or employee, to entity has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice Each Contract relating to the Business sale or provision of products or services by Seller has been entered into in the Acquired Companyordinary course of business of Seller and has been entered into without the commission of any act alone or in concert with any other person or entity, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the Businesslegal requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 5.16 contains a complete and accurate list, and the Company has made available to Buyer true and complete copies, of:
(i) each Applicable Contract that involves or will involve performance of services or delivery of goods by the Company of an amount or value, individually or, for the purchase or sale of Real Property; (b) any Contract (or group a series of related or similar Applicable Contracts, in the aggregate, in excess of $25,000;
(ii) each Applicable Contract that involves the future performance of services or delivery of goods or materials by one to the Company during any twelve (12) month period of an amount or more Acquired Companies with value, individually or, for a fair market value series of related Applicable Contracts, in the aggregate, in excess of $50,000 to any one Person 25,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for Business;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement of the sale of goods or materials by Company and each other Applicable Contract, in each case affecting the Acquired Company at market prices that is represented solely by a customer purchase orderownership, an acknowledgment from the Acquired Companytitle to, use of, occupancy, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment any leasehold or other expense interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000 and with terms of less than one year);
(v) each licensing agreement of the Company and each other Applicable Contract, in each case with Intellectual Property, including agreements with current or former Employees, consultants or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement of the Company and each other Applicable Contract, in each case to or with any labor union or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements Employee representative of a group of Employees and each other written employment or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 (except any Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other consulting agreement with any labor union; Employees or consultants;
(gvii) any each joint venture, venture or partnership or other Contract of the Company (however named) and each other Applicable Contract, in each case involving a sharing of profits, losses, costs or liabilities Liabilities by any Acquired the Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Acquired Company of its Affiliates or limit the freedom of the Company or any Acquired Company of its Affiliates to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney granted by or to the Company that is currently, or will be at the Closing, effective and outstanding;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by the Company to be responsible for consequential damages;
(jxii) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 10,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (nxiii) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such each Applicable Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies norwhich, to the Knowledge of Sellerthe Company, will result in a material loss to the Company;
(xiv) each Applicable Contract in effect presently or during the last twelve (12) months between the Company and its former or current stockholders, directors, officers and Employees;
(xv) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance in excess of $25,000 extended by the Company, other than in the Ordinary Course of Business;
(xvi) each severance agreement or similar arrangement that provides any obligations (absolute or contingent) for the Company or any other party theretoPerson to make any payment to any officer, director, or Employee or stockholder of the Company after termination; and
(xvii) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Schedule 5.16, no Company Stockholder (or any Affiliate thereof) has (or by the express terms thereof may acquire) any rights under, and no Company Stockholder has (or by the express terms thereof may become subject to) any obligation or liability under any Contract that relates to the business of, or any of the assets owned or used by, the Company;
(c) Except as set forth in Schedule 5.16, each Contract identified or required to be identified in Schedule 5.16 is in default under any Contract. Each Contract
(i) constitutes a valid full force and effect and is legal, valid, binding obligation of and enforceable in accordance with its terms against the Acquired Company party thereto and, to the Knowledge of Sellerthe Company, against all of the parties thereto.
(d) Except as set forth in Schedule 5.16:
(i) the Company is, and at all times since January 1, 2007, has been, in compliance in all material respects with all terms and requirements of each other party thereto; and Contract identified or required to be identified on Schedule 5.16;
(ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Sellerthe Company, as to each other party thereto. Except as separately Person that has or had any obligation or Liability under any Applicable Contract identified or required to be identified on SCHEDULE 5.15.2Schedule 5.16 is, no notice toand at all times since January 1, filing or registration with2007 has been, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all material terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsApplicable Contract;
(iii) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Sellerthe Company, fact no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired the Company or any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.Contract identified or required to be identified on Schedule 5.16; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor the Company has not given to or received from any Related Person of Seller (excluding other Person, at any of the Acquired Companies) has time since January 1, 2007, any rights or obligations under any Contract with an Acquired Company or that relates to the Business ofwritten or, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Sellerthe Company, no officerother notice or communication regarding any actual, directoralleged, agentpossible or potential violation or breach of, or employee of an Acquired Company is bound by default under, any Contract that purports identified or required to limit be identified in Schedule 5.16.
(e) There are no renegotiations of, attempts to renegotiate, and there are no outstanding rights to renegotiate any material amounts paid or payable to the ability of Company under current or completed Contracts with any Person and no such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice The Contracts relating to the provision of products or services by the Company have been entered into in the Ordinary Course of Business and have been entered into without the commission of the Acquired Companyany act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Sources: Merger Agreement (Commerce Planet)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 5.15 contains a complete and accurate list of:
(i) each Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one Bioauthorize of an amount or more Acquired Companies with a fair market value in excess of $50,000 10,000;
(ii) each Contract that involves performance of services or delivery of goods or materials to any one Person Bioauthorize of an amount or value in excess of $10,000;
(except (iiii) any each Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Bioauthorize in excess of $50,000 10,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(v) each licensing agreement or other Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company Bioauthorize with any other Person; ;
(hviii) any each Contract containing covenants that in any way purport to restrict the business activity of Bioauthorize or any Acquired Company Affiliate of Bioauthorize or limit the freedom of Bioauthorize or any Acquired Company Affiliate of Bioauthorize to engage in any line of business or to compete with any Person; ;
(iix) any each Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by Bioauthorize to be responsible for consequential damages;
(jxii) any each Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 10,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xiii) each written warranty, guaranty, or other similar undertaking with respect to contractual performance extended by Bioauthorize other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating foregoing.
(xv) Schedule 5.15 sets forth reasonably complete details concerning such Contracts, including the parties to any the Contracts and the amount of the Assets; (s) any Contract that involves an account receivable or note receivable remaining commitment of more than $100,000; and (t) any other Contract which is material to Bioauthorize under the Acquired Companies, as a wholeContracts.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed (b) Except as set forth in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractSchedule 5.15:
(i) constitutes a valid and binding obligation no officer, director or shareholder who owns in excess of five percent (5%) of the Acquired Company party thereto andcapital stock of Bioauthorize (and no Related Person of the foregoing) has nor may it acquire any rights under, any Contract that relates to the Knowledge business of, or any of Sellerthe assets owned or used by, of each other party theretoBioauthorize; and and
(ii) no officer, director, agent, employee, consultant, or contractor of Bioauthorize is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of Bioauthorize, or (B) assign to Bioauthorize or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Schedule 5.15, each Contract identified or required to be identified in Schedule 5.15 is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as to set forth in Schedule 5.15:
(i) Bioauthorize is, and at all times since inception has been, in full compliance with all applicable terms and requirements of each Contract under which Bioauthorize has or had any obligation or liability or by which Bioauthorize or any of the Acquired Company party thereto, and, to the Knowledge of Seller, as to assets owned or used by Bioauthorize is or was bound;
(ii) each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract under which Bioauthorize has or had any rights is, no notice toand at all times since inception has been, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give Bioauthorize or any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract; and
(iv) Bioauthorize has not given to or received from any other Person, at any time since inception, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (ae) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business There are no renegotiations of, attempts to renegotiate or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any outstanding rights to renegotiate any invention, improvement, material amounts paid or discovery in connection payable to Bioauthorize under current or completed Contracts with the Businessany Person and no such Person has made written demand for such renegotiation.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 5.19(a) contains an accurate and complete list, and Mitek has delivered to Parascript accurate and complete copies, of the following Contracts, which are referred to herein as “Material Mitek Contracts”:
(i) each Mitek Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one Mitek of an amount or more Acquired Companies with a fair market value in excess of One Hundred Thousand Dollars ($50,000 100,000);
(ii) each Mitek Contract that involves performance of services or delivery of goods or materials to any one Person Mitek of an amount or value in excess of One Hundred Thousand Dollars (except $100,000);
(iiii) any each Mitek Contract that was not entered into in the its Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Mitek in excess of One Hundred Thousand Dollars ($50,000 100,000);
(iv) each Mitek Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than One Hundred Thousand Dollars ($100,000) and with a term of less than one year);
(v) each Mitek Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(vi) each Mitek Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company Mitek with any other Person; ;
(hvii) any each Mitek Contract containing covenants that in any way purport to restrict the Mitek’s business activity of any Acquired Company or limit the freedom of any Acquired Company Mitek to engage in any line of business or to compete with any Person; ;
(iviii) any each Mitek Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Mitek that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts each Mitek Contract entered into other than in the its Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by Mitek to be responsible for consequential damages;
(jxi) any each Mitek Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of One Hundred Thousand Dollars ($250,000 for a single project 100,000);
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Mitek other than in the aggregate)its Ordinary Course of Business; and
(nxiii) any sale each amendment, supplement and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing. Part 5.19(a) sets forth the parties to each Material Mitek Contract, the effective date of each Material Mitek Contract, the term of each Material Mitek Contract, the goods or services to which each Material Mitek Contract relates and the amount of the remaining commitment of Mitek under each Material Mitek Contract.
(b) Except as set forth in Part 5.19(b), no stockholder of Mitek has or may acquire any maintenance rights under, and no stockholder of Mitek has or service agreements relating may become subject to any of the Assets; (s) obligation or liability under, any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material relates to the Acquired Companies, as a wholebusiness of Mitek or any of its assets.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed (c) Except as set forth in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractPart 5.19(c):
(i) constitutes a valid each Material Mitek Contract identified or required to be identified in Part 5.19
(a) has not been orally modified in any material respect (other than as described in Part 5.19(c)) and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Sellerand is valid and enforceable in accordance with its terms except, as to any party other than such Parascript, as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally and as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies; and
(ii) each other party thereto. Except as separately such Material Mitek Contract identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed required to be identified in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or Part 5.19(a) does not require the payment receipt of consent of any penalty or other amount in respect of such Contract Person as a result of the consummation contemplated Transactions.
(d) Except as set forth in Part 5.19(d):
(i) Mitek is, and at all times since January 1, 2003, has been, in compliance with all material terms and requirements of the Contemplated Transactionseach Material Mitek Contract;
(ii) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of SellerMitek, fact each other Person that has any obligation or liability under any Material Mitek Contract, and at all times since January 1, 2003, has been, in full compliance with all material terms and requirements of such Material Mitek Contract;
(iii) to the Knowledge of Mitek, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, with or result in a violation or breach of Breach of, or give any Acquired Company Mitek or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Applicable Material Mitek Contract., except where the occurrence of such event or existence of such circumstance would not have a Mitek Material Adverse Effect;
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (biv) to the Knowledge of SellerMitek, no officerevent has occurred or circumstance exists under or by virtue of any Material Mitek Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any of its assets which would have a Mitek Material Adverse Effect; and
(v) Mitek has not given to or received from any other Person, directorat any time since January 1, agent2003, any written notice or other written communication regarding any actual, alleged, possible or potential violation or Breach of, or employee of an Acquired Company is bound by default under, any Material Mitek Contract.
(e) There are no renegotiations of, written requests to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Mitek under any Mitek Contracts.
(f) Each Mitek Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the sale, design, manufacture or provision of products or services by Mitek has been entered into in the Ordinary Course of Business of Mitek and has been entered into without the Acquired Companycommission of any act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Sources: Merger Agreement (Mitek Systems Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.20(a) contains an accurate and complete list, and Seller has made available to Buyer accurate and complete copies, of:
(i) each Seller Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one Seller of an amount or more Acquired Companies with a fair market value in excess of $50,000 50,000;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to any one Person Seller of an amount or value in excess of $50,000;
(except (iiii) any each Seller Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Seller in excess of $50,000 10,000;
(iv) each Seller Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000 and with a term of less than one year);
(v) each Seller Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(vi) each Seller Contract with any independent third party relating to the delivery or administration of any employee benefits to Seller’s employees;
(vii) each Contract which is in respect of the employment, compensation or indemnification of a director or executive officer of Seller;
(viii) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company Seller with any other Person; ;
(hix) any each Seller Contract containing covenants that in any way purport to restrict the Seller’s business activity of any Acquired Company or limit the freedom of any Acquired Company Seller to engage in any line of business or to compete with any Person; ;
(ix) any each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than (x) direct payments for goods goods;
(xi) each power of attorney of Seller that is currently effective and outstanding;
(yxii) Contracts each Seller Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by Seller to be responsible for consequential damages;
(jxiii) any each Seller Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 25,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do xiv) each Seller Contract not exceed denominated in U.S. dollars in excess of $500,000 25,000;
(xv) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller other than in the aggregate); Ordinary Course of Business;
(nxvi) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving each Contract that provides for the indemnification of any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment assumption of any amount previously paid; Tax, environmental or other Liability of any Person;
(qxvii) each Contract that involves, as parties thereto, Seller, on the one hand, and any agreement of the directors, officers or other Affiliates of Seller or any Person that restricts owns or controls more than ten percent of any class of capital stock or other equity interest of Seller and each such Person’s respective directors, officers or other Affiliates, on the maintenance other hand;
(xviii) each Contract that establishes or incurrence relates to a joint venture or partnership involving Seller;
(xix) each Contract that constitutes a mortgage, indenture, note, installment obligation or other instrument relating to the borrowing of Indebtedness, money or under which it has imposed a security interest on any of the sale or lease Purchased Assets;
(xx) each Contract which constitutes a guarantee of property or distributions or transfers to shareholders any obligation of another Person;
(by dividend or otherwise); (rxxi) any each other Contract that materially is material to the Purchased Assets or the operation of the Business and adversely affects not previously disclosed pursuant to this Section 3.20(a);
(xxii) each Real Property Lease (each of which are deemed to constitute Seller Contract for the ownership purposes of this Agreement); and
(xxiii) each material amendment, supplement and modification (whether oral or leasing written) in respect of any of the Assets foregoing.
(b) Except as set forth in Schedule 3.20(b), no Shareholder has or may acquire any maintenance rights under any Contract that relates to the Business or service agreements relating to any of the Purchased Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed (c) Except as set forth in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractSchedule 3.20(c):
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) Assigned Contract is in full force and effect and is valid and enforceable in accordance with its terms; and
(ii) each Assigned Contract is assignable by Seller to Buyer without the consent of any other Person.
(d) Except as to the Acquired Company party theretoset forth on Schedule 3.20(d):
(i) Seller is, andand has been, in compliance with all applicable terms and requirements of each Seller Contract;
(ii) to the Knowledge of Seller, as to Seller each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Seller Contract is, no notice toand has been, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact Seller no event has occurred or circumstance exists that (with or without notice or lapse after the expiration of timeany applicable cure period) may contravene, conflict with, with or result in a violation or breach of Breach of, or give any Acquired Company Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Applicable Seller Contract.;
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor no event has occurred or circumstance exists under or by virtue of any Related Person Contract that (with or without notice or after the expiration of Seller (excluding any applicable cure period ) would cause the creation of any Encumbrance affecting any of the Acquired CompaniesPurchased Assets; and
(v) Seller has any rights not given to or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to received from any other Person any notice or other communication (whether oral or written) regarding any actual, alleged, possible or potential violation or Breach of, or default under, any Assigned Contract.
(e) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any inventionmaterial amounts paid or payable to Seller under current or completed Contracts with any Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation.
(f) Each Contract relating to the sale, improvementdesign, manufacture or provision of products or services by Seller has been entered into in the Ordinary Course of Business of Seller and has been entered into without the commission of any act alone or in concert with any other Person, or discovery any consideration having been paid or promised, that is or would be in connection with the Businessviolation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 (a) Section 3.14 of the Disclosure Schedule contains a complete and accurate list, and Seller has delivered or as disclosed in this Agreementotherwise made available to Buyer true and complete copies, no of each of the following Contracts to which an Acquired Company is a party to or is bound by: (acollectively, the "Applicable Contracts"):
(i) any each Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market of an amount or value in excess of $50,000 30,000;
(ii) each Contract that involves performance of services or delivery of goods or materials to any one Person or more Acquired Companies of an amount or value in excess of $150,000;
(except (iiii) any each Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods one or materials by the more Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Companies in excess of $50,000 30,000;
(iv) each Lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any Contract entered into in the Ordinary Course personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of Business less than $30,000);
(v) all Company IP Agreements other than licenses for the purchase of servicesshrinkwrap, goods, materials clickwrap or inventory by the Acquired Company at market prices other similar commercially available off-the-shelf Software that is represented solely has not been modified or customized by a purchase order, third party for an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); ;
(evi) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any each collective bargaining agreement and other Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hviii) any each Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or limit the freedom of any Acquired Company to engage in any line of business or to compete with any Person; ;
(iix) any each Contract providing for payments to any Person, of an amount or by any Person value in excess of $30,000, based on sales, purchases the sales or profits, other than profits of an Acquired Company;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) provides for an express undertaking by any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; to be responsible for consequential damages;
(kxii) any each Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 25,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the aggregate); Ordinary Course of Business;
(nxiv) any sale and leaseback arrangements and installment purchase arrangements; each third party managed care Contract to which more than 1% of the Company's total patient/customer appointments during its most recent full fiscal year would reasonably be attributable (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party the counterparty to such third party managed care Contract the right is referred to renegotiate herein as a "Material Managed Care Customer");
(xv) each Contract with an ophthalmologist who performs services on behalf of an Acquired Company; and
(xvi) each amendment, supplement, and modification (whether oral or require a reduction or increase written) in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeforegoing.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(ib) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aSection 3.14(b) neither Seller nor any Related Person of Seller (excluding any of the Acquired CompaniesDisclosure Schedule:
(i) has Seller is not a party to any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired CompanyApplicable Contract; and and
(bii) to the Knowledge of Seller's Knowledge, no officer, director, agent, employee, consultant, or employee contractor of an any Acquired Company or Company Clinician, is bound by any Contract that purports to limit the ability of such officer, director, agent or agent, employee, consultant, contractor or Company Clinician to (iA) engage in or continue any conduct, activity, or practice relating to the Business business of the any Acquired Company, or (iiB) assign to an any Acquired Company or to any other Person any rights to any invention, improvement, or discovery discovery.
(c) Except as set forth in connection Section 3.14(c) of the Disclosure Schedule, each Applicable Contract is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Section 3.14(d) of the BusinessDisclosure Schedule, since the Look Back Date:
(i) each Acquired Company is and has been, in all material respects, in compliance with each Applicable Contract;
(ii) to Seller's Knowledge, each other Person that is party to an Applicable Contract is and has been, in all material respects, in compliance with such Applicable Contract; and
(iii) to Seller's Knowledge, no event has occurred or circumstance exists that (with or without notice or lapse of time) would contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person that is party to an Applicable Contract the right to declare a default under, or to accelerate the maturity or performance of, or to cancel, or terminate, any Applicable Contract; and
(iv) no Acquired Company has given, or received from any other Person, any written notice regarding any actual or alleged violation or breach of, or default under, or termination of any Applicable Contract.
(e) Except as set forth in Section 3.14(e) of the Disclosure Schedule, no counterparty to an Applicable Contract has delivered written notice to any Acquired Company of its intent to renegotiate, or attempt to renegotiate, any material amounts paid or payable to such Acquired Company under such Applicable Contract.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Exhibit 4.16 contains a complete and accurate list, and the Company has delivered to Buyer true and complete copies all written contracts and provided detailed summaries of oral (as such are known to the General Manager of the Company) agreements, of:
(i) each Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market to the Company of an amount or value in excess of $50,000 2,000; unless such contract is cancelable by the Company with not more than 90 days notice and the amount or value of the services to any one Person be performed or of the goods or materials to be delivered by or to the Company within such 90 day period would not exceed $2,000;
(except (iii) any each Contract that was not entered into in the Ordinary Course of Business for the sale of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, involves expenditures or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 receipts of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 2,000;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any Contract entered into in the Ordinary Course personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of Business for the purchase less than $2,000 and with terms of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transactionless than one year); ;
(eiv) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other each licensing agreement with any labor union; (g) any joint venture, partnership or other Contract (however namedexcept for commonly available software programs with a value of less than $2,000) involving a sharing with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of profitsany of the Intellectual Property Assets;
(v) each joint venture, lossespartnership, costs and other Contract to or liabilities by any Acquired Company with any labor union or other Person; employee representative of a group of employees;
(hvi) any each Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company the Company, the parties with whom it contracts or limit the freedom of any Acquired the Company to engage in any line of business or to compete with any Person; Person or that purport to grant an option to any Person to acquire any of the assets of the Company or Shares of the Company;
(ivii) any each Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods goods;
(viii) each power of attorney that is currently effective and outstanding;
(yix) Contracts each Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by the Company to be responsible for consequential damages;
(jx) any each Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 25,000;
(it being warranted that xi) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance of any Person extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate); Ordinary Course of Business;
(nxii) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing modification in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing; and
(xiii) each Contract for the removal of hazardous wastes or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companiesmaterials, as a wholedefined under Legal Requirements or for its disposal.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed (b) Except as set forth in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, Exhibit 4.16: to the Knowledge of Sellerthe Shareholder and the Company, no officer, director or employee, of the Company is bound by any other party theretoContract that purports to limit the ability of such officer, is in default under any Contract. Each Contract
director or employee, to (i) constitutes a valid and binding obligation engage in or continue any conduct, activity, or practice relating to the business of the Acquired Company party thereto andCompany, to the Knowledge of Seller, of each other party thereto; and or (ii) assign to the Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Exhibit 4.16, each Applicable Contract is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Exhibit 4.16:
(i) the Company is, and at all times since January 1, 1998 has been, in full compliance with all material applicable terms and requirements of each Applicable Contract under which the Company has or had any obligation or liability or by which the Company or any of the assets owned or used by the Company is or was bound;
(ii) to the Acquired Company party thereto, and, to best of the Company's Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Applicable Contract under which the Company has or had any rights is, no notice toand at all times since January 1, filing or registration with1998 has been, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all material applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists since January 1, 1998 that (with or without notice or lapse of time) may contravene, conflict with, or result in a material violation or breach of by the Company or other Person, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor the Company has not given to or received from any Related Person of Seller other Person, at any time any notice or other communication (excluding whether oral or written) regarding any of the Acquired Companies) has any rights actual, alleged, possible, or obligations under any Contract with an Acquired Company potential violation or that relates to the Business breach of, or default under, any of Applicable Contract by the Assets owned Company where such breach was not subsequently cured or used byProceedings commenced.
(e) There are no renegotiations of, an Acquired Company; and (b) attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Knowledge of SellerCompany under current or completed Contracts with any Person and, no officer, director, agent, or employee of an Acquired such Person has made written demand to the Company is bound by any Contract that purports to limit the ability of for such officer, director, agent or employee, to renegotiation.
(if) engage in or continue any conduct, activity, or practice The Contracts relating to the Business of the Acquired Companysale, design, manufacture, or (ii) assign to an Acquired provision of products or services by the Company have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or to in concert with any other Person any rights to any invention, improvementPerson, or discovery any consideration having been paid or promised, that is or would be in connection with violation of any Legal Requirement by the BusinessCompany.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any SCHEDULE 3.16(A) contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 to any one Person 25,000;
(except (iii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods and that involves expenditures or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 receipts of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 15,000;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $30,000 or with terms of less than one year);
(iv) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fv) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvi) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hvii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Acquired Affiliate of the Company or limit the freedom of the Company or any Acquired Affiliate of the Company to engage in any line of business or to compete with any Person; ;
(iviii) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each power of attorney that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by the Company to be responsible for consequential damages;
(xi) each written warranty, guaranty, and or other similar undertaking with employees and respect to contractual performance extended by the Company other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into than in the Ordinary Course of Business Business; and
(xii) each amendment, supplement, and modification (whether oral or that was entered into at a price or prices materially written) in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any of the Assets; foregoing. The Applicable Contracts designated by an asterisk on SCHEDULE 3.16(A) shall be considered "Material Contracts."
(sb) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, Except as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed set forth in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractSCHEDULE 3.16(B):
(i) constitutes a valid no Seller (and binding no Affiliate of any Seller other than the Company) has or may acquire any rights under, and no Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Acquired assets owned or used by, the Company; and
(ii) no officer or director of the Company party thereto and, to the Knowledge of SellerSellers, no agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of the Company, or (B) assign to the Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in SCHEDULE 3.16(C), to the Knowledge of Sellers, each other party thereto; and Contract identified or required to be identified in Schedule 3.16
(iia) is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as to set forth in SCHEDULE 3.16(D):
(i) the Acquired Company party thereto, and, is in material compliance with all applicable terms and requirements of each material Contract under which the Company has or had any obligation or liability or by which the Company or any of the assets owned or used by the Company is or was bound;
(ii) to the Knowledge of SellerSellers, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, no notice toand at all times since January 1, filing or registration with2000 has been, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of SellerSellers, fact no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor the Company has not given to or received from any Related Person of Seller (excluding other Person, at any of the Acquired Companies) has time since January 1, 2000, any rights written notice or obligations under other communication regarding any Contract with an Acquired Company actual, alleged, possible, or that relates to the Business potential violation or breach of, or default under, any of the Assets owned Contract.
(e) There are no renegotiations of, attempts to renegotiate, or used by, an Acquired Company; and (b) outstanding rights to renegotiate any material amounts paid or payable to the Knowledge of Seller, Company under current or completed Contracts with any Person and no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice The Contracts relating to the provision of services by the Company have been entered into in the Ordinary Course of Business and have been entered into without the commission of the Acquired Companyany act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 3.19(a) of the Disclosure Schedule contains a complete and accurate list, if any, and Sellers have delivered to Buyer true and complete copies, if any, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 10,000.00 (excluding the rental of Rental Equipment in the Ordinary Course of Business);
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person the Company of an amount or value in excess of $5,000.00;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods and that involves expenditures or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 receipts of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 5,000.00;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $5,000.00 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Acquired Affiliate of the Company or limit the freedom of the Company or any Acquired Affiliate of the Company to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney, if any, that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract, if any, entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by the Company to be responsible for consequential damages;
(jxii) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 5,000.00;
(it being warranted that xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements foregoing. Part 3.19(a) of the Disclosure Schedule sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Company under the Contracts, and the Company's office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.19(b) of the Disclosure Schedule:
(i) no Seller (and no Related Person of any Seller) has or may acquire any rights under, and no Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of; or any of the Assetsassets owned or used by, the Company; and
(sii) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of SellerSellers and the Company, no officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of the Company, or (B) assign to the Company or to any other party theretoPerson any rights to any invention, is in default under any Contract. Each Contractimprovement, or discovery.
(ic) constitutes a valid and binding obligation Except as set forth in Part 3.19(c) of the Acquired Company party thereto andDisclosure Schedule, each Contract identified or required to be identified in Part 3.19
(a) of the Knowledge of Seller, of each other party thereto; and (ii) Disclosure Schedule is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as to set forth in Part 3.19(d) of the Acquired Disclosure Schedule:
(i) the Company party theretois, andand at all times since March 31, to 1993 has been, in substantial compliance with all applicable terms and requirements of each Contract under which the Knowledge Company has or had any obligation or liability or by which the Company or any of Seller, as to the assets owned or used by the Company is or was bound;
(ii) each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, no notice toand at all times has been, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, the Applicable Contract; and
(iv) the Company has not given to or received from any Applicable other Person, at any time any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (ae) neither Seller nor There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any Related Person of Seller (excluding any of the Acquired Companies) has any rights material amounts paid or obligations under any Contract with an Acquired Company or that relates payable to the Business ofCompany under current or completed Contracts with any Person and, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of SellerSellers and the Company, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice The Contracts relating to the Business of the Acquired Companysale, design, manufacture, or (ii) assign to an Acquired provision of products or services by the Company have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or to in concert with any other Person any rights to any invention, improvementPerson, or discovery any consideration having been paid or promised, that is or would be in connection with the Businessviolation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and ▇▇▇▇▇▇▇▇▇▇ has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market of an amount or value in excess of $50,000 to any one Person 20,000;
(except (iii) any each Applicable Contract entered into in the Ordinary Course that involves performance of Business for the sale services or delivery of goods or materials by the to one or more Acquired Company at market prices that is represented solely by a customer purchase order, Companies of an acknowledgment from the Acquired Company, amount or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 20,000;
(except any Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (eiii) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership or other Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company with any other Person; (h) any Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or limit the freedom of any Acquired Company to engage in any line of business or to compete with any Person; (i) any Contract providing for payments to or by any Person based on sales, purchases or profits, other than (x) direct payments for goods and (y) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or that was entered into at a price receipts of one or prices materially more Acquired Companies in excess of $20,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment leasehold or other expense interest in, any real or immoveable or personal or moveable property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $20,000 and with terms of less than one year);
(v) each licensing agreement or other significant impact on Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including material agreements with current employees, consultants, or contractors regarding the relevant Acquired Company, at appropriation or the non-disclosure of any time after of the Closing Intellectual Property Assets;
(except for amounts earned vi) each collective bargaining agreement and other Applicable Contract to or accrued prior to termination); with any labor union or other employee representative of a group of employees;
(mvii) any each Applicable Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 50,000;
(it being warranted that viii) all other Applicable Contracts which individually or aggregated together are material to the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); business, assets, results of operations, condition (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend financial or otherwise), or prospects of the Acquired Companies considered as a whole; and
(rix) any other Contract that materially each amendment, supplement, and adversely affects the ownership modification (whether oral or leasing written) in respect of any of the Assets or any maintenance or service agreements relating to any foregoing.
(b) Except as set forth in Part 3.17(b) of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractDisclosure Letter:
(i) constitutes a valid no Seller, and binding no Related Person of any Seller, has or may acquire any rights under, and no Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company party thereto Company; and, to the Knowledge of Seller, of each other party thereto; and
(ii) no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as to set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company party theretois, and, in full compliance with all applicable terms and requirements of each Contract identified or required to be identified in Part 3.17(a) of the Knowledge of Seller, as to Disclosure Letter;
(ii) each other party thereto. Except as separately Person that has or had any obligation or liability under any Contract identified on SCHEDULE 5.15.2or required to be identified in Part 3.17(a) of the Disclosure Letter, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract; and
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modifyterminate, any Applicable Contract.
5.15.3. Except as set forth Contract identified or required to be identified in SCHEDULE 5.15.3: (aPart 3.17(a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired CompanyDisclosure Letter; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Business.and
Appears in 1 contract
Sources: Stock Purchase Agreement (Styrochem International LTD)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 5.15 contains a complete and accurate list of:
(i) each Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one Youchange of an amount or more Acquired Companies with a fair market value in excess of $50,000 10,000;
(ii) each Contract that involves performance of services or delivery of goods or materials to any one Person Youchange of an amount or value in excess of $10,000;
(except (iiii) any each Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Youchange in excess of $50,000 10,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(v) each licensing agreement or other Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company Youchange with any other Person; ;
(hviii) any each Contract containing covenants that in any way purport to restrict the business activity of Youchange or any Acquired Company Affiliate of Youchange or limit the freedom of Youchange or any Acquired Company Affiliate of Youchange to engage in any line of business or to compete with any Person; ;
(iix) any each Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by Youchange to be responsible for consequential damages;
(jxii) any each Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 10,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xiii) each written warranty, guaranty, or other similar undertaking with respect to contractual performance extended by Youchange other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating foregoing.
(xv) Schedule 5.15 sets forth reasonably complete details concerning such Contracts, including the parties to any the Contracts and the amount of the Assets; (s) any Contract that involves an account receivable or note receivable remaining commitment of more than $100,000; and (t) any other Contract which is material to Youchange under the Acquired Companies, as a wholeContracts.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed (b) Except as set forth in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractSchedule 5.15:
(i) constitutes a valid and binding obligation no officer, director or shareholder who owns in excess of five percent (5%) of the Acquired Company party thereto andcapital stock of Youchange (and no Related Person of the foregoing) has nor may it acquire any rights under, any Contract that relates to the Knowledge business of, or any of Sellerthe assets owned or used by, of each other party theretoYouchange; and and
(ii) no officer, director, agent, employee, consultant, or contractor of Youchange is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of Youchange, or (B) assign to Youchange or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Schedule 5.15, each Contract identified or required to be identified in Schedule 5.15 is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as to set forth in Schedule 5.15:
(i) Youchange is, and at all times since inception has been, in full compliance with all applicable terms and requirements of each Contract under which Youchange has or had any obligation or liability or by which Youchange or any of the Acquired Company party thereto, and, to the Knowledge of Seller, as to assets owned or used by Youchange is or was bound;
(ii) each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract under which Youchange has or had any rights is, no notice toand at all times since inception has been, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give Youchange or any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract; and
(iv) Youchange has not given to or received from any other Person, at any time since inception, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (ae) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business There are no renegotiations of, attempts to renegotiate or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any outstanding rights to renegotiate any invention, improvement, material amounts paid or discovery in connection payable to Youchange under current or completed Contracts with the Businessany Person and no such Person has made written demand for such renegotiation.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Seller has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Acquired Company of an amount or more Acquired Companies with a fair market value in excess of One Thousand US Dollars ($50,000 1,000.00);
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person the Acquired Company of an amount or value in excess of One Thousand US Dollars (except $1,000.00);
(iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods one or materials by the more Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of One Thousand US Dollars ($50,000 1,000.00);
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than One thousand US Dollars ($1,000.00) and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any the Acquired Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of any the Acquired Company or the Affiliate of the Acquired Company or limit the freedom of the Acquired Company or any Affiliate of the Acquired Company to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) any Contract which provides for, or relates to, for an express undertaking by the incurrence by an Acquired Company of Indebtedness; to be responsible for consequential damages;
(kxii) any each Applicable Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of Five Thousand US Dollars ($250,000 for a single project 5,000.00);
(it being warranted that xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Acquired Company other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements foregoing. Part 3.17(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Company under the Contracts, and the Acquired Company's office where details relating to any the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractDisclosure Letter:
(i) constitutes a valid Seller (and binding any Related Person of Seller) has not or may not acquire any rights under, and Seller has not or may not become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, the Acquired Company; and
(ii) no officer, director, participant, agent, employee, consultant, or contractor of the Acquired Company party thereto andis bound by any Contract that purports to limit the ability of such officer, director, participant, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the Knowledge business of Sellerthe Acquired Company, or (B) assign to the Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each other party thereto; and (iiContract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as to set forth in Part 3.17(d) of the Disclosure Letter:
(i) the Acquired Company party theretois, andand at all times since its formation has been, to in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the Knowledge of Seller, as to assets owned or used by such Acquired Company is or was bound;
(ii) each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract under which the Acquired Company has or had any rights is, no notice toand at all times since its formation has been, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any the Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor any Related Person of Seller (excluding any of the Acquired CompaniesCompany has not given to or received from any other Person, at any time since its formation any notice or other communication (whether oral or written) has regarding any rights actual, alleged, possible, or obligations under any Contract with an Acquired Company potential violation or that relates to the Business breach of, or default under, any of the Assets owned Contract.
(e) There are no renegotiations of, attempts to renegotiate or used by, an Acquired Company; and (b) outstanding rights to renegotiate any material amounts paid or payable to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by under current or completed Contracts with any Contract that purports to limit the ability of Person and no such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice The Contracts relating to the Business sale, design, manufacture, or provision of products or services by the Acquired CompanyCompany have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) Schedule 2.16(a) contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each contract (a) under which the Company has or may acquire any Contract for the purchase or sale of Real Property; rights, (b) under which the Company has or may become subject to any Contract obligation or liability, or (c) by which the Company or group any of related the assets owned or similar Contracts) used by it is or may become bound ("Applicable Contract"), that involves the future performance of services or delivery of goods or materials by one the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 to any one Person 50,000;
(except (iii) any each Applicable Contract that was not entered into in the Ordinary Course ordinary course of Business for the sale of goods business and that involves expenditures or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 receipts of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 50,000;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $50,000 and with terms of less than one year);
(iv) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fv) any collective bargaining or other agreement with any labor union; (g) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hvi) any Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or limit the freedom of any Acquired Company to engage in any line of business or to compete with any Person; (i) any Contract each Applicable Contract, including distributor agreements, providing for payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods goods;
(vii) each power of attorney that is currently effective and outstanding;
(yviii) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 50,000;
(it being warranted that ix) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate)ordinary course of business; and
(nx) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating foregoing.
(a) sets forth reasonably complete details concerning such contracts, including the parties to any the contracts and the amount of the Assets; (s) any Contract that involves an account receivable or note receivable remaining commitment of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeCompany under the contracts.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies (b) Except as disclosed on Schedule 2.16, (i) each of the Contracts agreements, contracts, commitments, leases and other instruments, documents and undertakings listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies norSchedule 2.16, to the Knowledge of Seller, any other party theretoSellers' knowledge, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of enforceable in accordance with its terms, the Acquired Company party thereto and, to Sellers' knowledge, the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party parties thereto, are in compliance with the provisions thereof, the Company and, to Sellers' knowledge, the Knowledge of Sellerother parties thereto are not in default in the performance, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing observance or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment fulfillment of any penalty material obligation, covenant or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No condition contained therein, and no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without the giving of notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare both, would constitute a default or exercise any remedy underby the Company, or to accelerate Sellers' knowledge, such other parties thereunder; (ii) no such agreement, contract, commitment, lease or other instrument, document or undertaking, in the maturity reasonable opinion of Sellers, contains a contractual requirement with which there is a reasonable likelihood that the Company or performance ofany other party thereto will be unable to comply; (iii) other than for maintenance and use of the products as indicated on Schedule 2.16, no advance payments have been received by the Company by or on behalf of any party to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights agreements, contracts, commitments, leases and other instruments listed on Schedule 2.16 for services to be rendered or obligations under any Contract with an Acquired Company or that relates products to be delivered to such party after the Business of, or any of the Assets owned or used by, an Acquired CompanyClosing Date; and (biv) no consent or approval of any party to any agreement, contract, commitment, lease or other instrument, document, or undertaking listed on Schedule 2.16 is required for the execution of this Agreement or the consummation of the transactions contemplated hereby. The customer agreements listed on Schedule 2.16 represent all of the currently operative customer agreements to which the Company is a party which relate to the Knowledge sale of Seller, no officer, director, agent, or employee of an Acquired products by the Company is bound except any operative customer agreement that involves receipts by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, contemplates future receipts by the Company of $50,000 or discovery in connection with the Businessless.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) Schedule 4.16 contains a complete and accurate list, and CSR made available to MFSC true and complete copies, of:
(i) each written Applicable Contract that involves performance of services or delivery of goods by CSR or any Contract of its Subsidiaries of an amount or value, individually or, for the purchase or sale of Real Property; (b) any Contract (or group a series of related or similar Applicable Contracts, in the aggregate, in excess of $10,000;
(ii) each Applicable Contract that involves the future performance of services or delivery of goods or materials by one to CSR or more Acquired Companies with any of its subsidiaries of an amount or value, individually or, for a fair market value series of related Applicable Contracts, in the aggregate, in excess of $50,000 to any one Person 20,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures of CSR or any of its Subsidiaries, individually or, for a series of related Applicable Contracts, in the sale of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase orderaggregate, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 10,000, or receipts of CSR or any of its Subsidiaries, individually or, for a series of related Applicable Contracts, in the aggregate, in excess of $20,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract of CSR or any of its Subsidiaries affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract of CSR or any Contract entered into in of its Subsidiaries with respect to patents, trademarks, copyrights or other intellectual property, including agreements with current or former employees, consultants or contractors regarding the Ordinary Course appropriation or the non-disclosure of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; CSR Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Applicable Contract of CSR or any of its Subsidiaries to or with any labor union or other employee representative of a group of employees and each other written employment or consulting agreement with any labor union; employees or consultants;
(gvii) any each joint venture, partnership and other Applicable Contract of CSR or other Contract any of its Subsidiaries (however named) involving a sharing of profits, losses, costs or liabilities by CSR or any Acquired Company of its Subsidiaries with any other Person; ;
(hviii) each Applicable Contract of CSR or any Contract of its Subsidiaries containing covenants that in any way purport to restrict the business activity of CSR or any Acquired Company of its Subsidiaries or any Affiliate of CSR or any of its Subsidiaries or limit the freedom of CSR or any Acquired Company of its Subsidiaries or any Affiliate of CSR or any of its Subsidiaries to engage in any line of business or to compete with any Person; ;
(iix) each Applicable Contract of CSR or any Contract of its Subsidiaries providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by CSR or any of its Subsidiaries to be responsible for consequential damages;
(jxii) each Applicable Contract of CSR or any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment its Subsidiaries for capital expenditures in excess of $250,000 for a single project 10,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (nxiii) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such each Applicable Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies norwhich, to the Knowledge of SellerCSR,will result in a material loss to CSR and its Subsidiaries;
(xiv) each Applicable Contract between a CSR or any of its Subsidiaries, on the one hand, and its former or current stockholders, directors, officers and employees, on the other hand (other than standard employment agreements previously furnished to or approved by MFSC);
(xv) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by CSR or any of its Subsidiaries other than in the Ordinary Course of Business; and
(xvi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Schedule 4.16 sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of CSR or any of its Subsidiaries under the Contracts, and the place where details relating to the Contracts are located.
(b) Except as set forth in Schedule 4.16, no officer, director, agent, employee, consultant or contractor of CSR or any of its Subsidiaries is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant or contractor to (A) engage in or continue any conduct, activity or practice relating to the business of CSR or any of its Subsidiaries or (B) assign to CSR or any of its Subsidiaries or to any other party theretoPerson any rights to any invention, is in default under any Contract. Each Contractimprovement or discovery.
(ic) constitutes a valid and binding obligation of the Acquired Company party thereto andExcept as set forth in Schedule 4.16, each Contract identified or required to the Knowledge of Seller, of each other party thereto; and (ii) be identified in Schedule 4.16 is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as to set forth in Schedule 4.16:
(i) each of CSR and its Subsidiaries is, and at all times since January 1, 1993, has been, in compliance with all material terms and requirements of each material Contract under which CSR or any of its Subsidiaries has or had any obligation or Liability or by which CSR or any of its Subsidiaries or any of the Acquired Company party theretoassets owned or used by CSR or any of its Subsidiaries is or was bound;
(ii) each other Person that has or had any obligation or Liability under any material Contract under which CSR or any of its Subsidiaries has or had any rights is, andand at all times since January 1, 1993 has been, in compliance with all material terms and requirements of such Contract;
(iii) to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2CSR, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give CSR or any Acquired Company of its Subsidiaries or any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller CSR nor any Related Person of Seller (excluding its Subsidiaries has given to or received from any of the Acquired Companies) has other Person, at any rights or obligations under time since January 1, 1993, any Contract with an Acquired Company or that relates to the Business ofwritten or, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of SellerCSR, no officerother notice or other communication regarding any actual, directoralleged, agentpossible or potential violation or breach of, or employee of an Acquired Company is bound by default under, any Contract that purports Contract.
(e) There are no renegotiations of, attempts to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activityrenegotiate, or practice outstanding rights to renegotiate any material amounts paid or payable to CSR or any of its Subsidiaries under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the provision of products or services by CSR and its Subsidiaries have been entered into in the Ordinary Course of Business and have been entered into without the commission of the Acquired Companyany act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Sources: Merger Agreement (Corporate Staffing Resources Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.20(a) contains an accurate and complete list, and Seller has delivered to Buyer, accurate and complete copies of:
(i) each Transferred Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance performances of services by Seller of an amount or value in excess of $50,000;
(ii) each Transferred Contract that involves furnishing of services, licensing of software or delivery of goods or materials by one to Seller of an amount or more Acquired Companies with a fair market value in excess of $50,000 to any one Person 50,000;
(except (iiii) any each Transferred Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Seller in excess of $50,000 50,000;
(iv) each Transferred Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in any real or personal property (except any personal property leases and installment and conditional sales agreements) having a value per item or aggregate payments of less than $50,000;
(v) each Transferred Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership union or other employee representative of a group of employees relating to wages, hours and conditions of employment;
(vi) each Transferred Contract (however named) involving a sharing share of profits, losses, costs or liabilities by any Acquired Company Seller with any other Person; ;
(hvii) any Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or limit the freedom of any Acquired Company to engage in any line of business or to compete with any Person; (i) any each Transferred Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payment for goods;
(xviii) direct payments for goods each power of attorney granted by Seller that is currently effective and outstanding and binding on Buyer after the Closing, except powers of attorney granted in respect of patents, copies of which have been previously provided to Buyer by Seller;
(yix) Contracts each Transferred Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by Seller to be responsible for consequential damages;
(jx) any each Transferred Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 25,000 in the aggregate); ;
(nxi) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts each Transferred Contract containing covenants that in any case a specific clause way purport to restrict Seller's business activity with respect to the Automated Services Business
(xii) each written warranty, guaranty or affected other similar undertaking with respect to contractual performance extended by a Legal Requirement giving any Person a party Seller with respect to such Contract the right to renegotiate Automated Systems Business other than in the Ordinary Course of Business; and
(xiii) each amendment, supplement, and modification (whether oral or require a reduction or increase written) in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeforegoing.
5.15.2. (b) Except as set forth on Schedule 3.20(b):
(i) each Transferred Contract is valid and binding and in full force and effect;
(ii) neither Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller's Knowledge, any other party thereto, to any Seller Contract is in default under any Contract. Each ContractTransferred Contract except as would not be expected to have a Material Adverse Effect;
(iiii) constitutes no event has occurred which with the giving of notice or passage of time or both would constitute a valid and binding default by Seller under any Transferred Contract except as would not be expected to have a Material Adverse Effect; and
(iv) neither Seller, nor to Seller's Knowledge, any Person other than Seller has failed to comply with any obligation under any Transferred Contract which would materially adversely affect, either individually or together with other defaults, the financial condition of the Acquired Company party thereto Automated Systems Business or the Assets.
(c) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Seller under current or completed Transferred Contracts with any Person and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any such Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify has made written demand for such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contractrenegotiation.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Business.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cohu Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.17(a) contains a complete and accurate list, and, with respect to written agreements, Sellers have delivered to Buyer true and complete copies thereof, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one an Acquired Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 2,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person an Acquired Company of an amount or value in excess of $2,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the an Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 2,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $2,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials copyrights or inventory by the Acquired Company at market prices that is represented solely by a purchase orderother intellectual property, an acknowledgement from the Acquired Companyincluding agreements with current or former employees, consultants or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking contractors of the obligations Company regarding the appropriation or the non-disclosure of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; any such intellectual property;
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or and other Applicable Contract (however named) involving a sharing of profits, losses, costs or liabilities by any an Acquired Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of any an Acquired Company or limit the freedom of any an Acquired Company to engage in any line of business or to compete with any Person; ;
(iix) any Contract providing for payments to or each power of attorney granted by any Person based on sales, purchases or profits, other than an Acquired Company that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) any Contract which provides for, or relates to, the incurrence for an express undertaking by an Acquired Company of Indebtedness; to be responsible for consequential damages;
(kxi) any each Applicable Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 2,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xii) each written warranty, guaranty and or other similar undertaking with respect to contractual performance extended by an Acquired Company other than in the aggregate)Ordinary Course of Business; and
(nxiii) any sale each amendment, supplement and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing.
(b) Except as set forth in Schedule 3.17(b):
(i) no Seller and no Related Person of any Seller (other than the Acquired Companies) has or may acquire any maintenance rights under, and no Seller and no Related Person of any Seller (other than the Acquired Companies) has or service agreements relating may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Assetsassets owned or used by, the Acquired Companies; and
(sii) to Sellers’ Knowledge, no officer, manager, agent, employee, consultant or contractor of an Acquired Company is bound by any Contract that involves an account receivable purports to limit the ability of such officer, manager, agent, employee, consultant or note receivable contractor to (A) engage in or continue any conduct, activity or practice relating to the business of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeor (B) assign to an Acquired Company or to any other Person any rights to any invention, improvement or discovery.
5.15.2. Seller has furnished (c) Except as set forth in Schedule 3.17(c), each Contract identified or made available required to Buyer complete and correct copies of the Contracts listed be identified in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (iiSchedule 3.17(a) is in full force and effect as to and is valid and enforceable against the applicable Acquired Company and, to Sellers’ Knowledge, the other party thereto, andin accordance with its terms except as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors rights generally and subject to the Knowledge of Seller, as to each other party thereto. general equitable principles.
(d) Except as separately identified on SCHEDULE 5.15.2set forth in Schedule 3.17(d), no Seller and no Acquired Company is or will be required to give any notice to, filing to or registration with, or obtain any Consent of, from any Person is needed under any of the Applicable Contracts listed or required to be listed in order that Schedule 3.17(a) in connection with the Contracts execution and delivery of this Agreement or the consummation or performance of any of the Proposed Transactions.
(e) Except as set forth in Schedule 3.17(e):
(i) each Acquired Company is, and at all times since January 1, 2011 has been, and to Sellers’ actual knowledge (without inquiry), at all time prior to January 1, 2011, has been in compliance in all material respects with all applicable terms and requirements of each Contract required to be set forth on SCHEDULES 5.11.2Schedule 3.17(a) under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by it is or was bound;
(ii) to Sellers’ Knowledge, 5.12, 5.13.2 AND 5.15.1 continue each other Person that has or had any obligation or liability under any Contract required to be set forth on Schedule 3.17(a) under which an Acquired Company has or had any rights is in full force compliance in all material respects with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No to Sellers’ Knowledge, no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may would contravene, conflict with, or result in a violation or breach of of, or give any the applicable Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable ContractContract required to be set forth on Schedule 3.17(a); and
(iv) since January 1, 2011, no Acquired Company has given to or received from any other Person any written notice or other written communication regarding any actual, alleged, possible or potential violation or breach of, or default under, any Contract required to be set forth on Schedule 3.17(a), which remains outstanding and has not been cured or otherwise resolved.
5.15.3. (f) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any amounts paid or payable to an Acquired Company under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
(g) Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person on Schedule 3.17(g), the Contracts relating to the provision of Seller (excluding any of the Acquired Companies) has any rights products or obligations under any Contract with services by an Acquired Company have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or that relates to the Business ofin concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (National Commerce Corp)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement(A) Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, no Acquired Company is a party and Sellers have delivered to or bound by: Buyer true and complete copies, of:
(ai) any each Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one Network 40 or more Acquired Companies with a fair market either Company of an amount or value in excess of $50,000 to any one Person 50,000;
(except (iii) any each Contract entered into in the Ordinary Course that involves performance of Business for the sale services or delivery of goods or materials by the Acquired to Network 40 or either Company at market prices that is represented solely by a customer purchase order, of an acknowledgment from the Acquired Company, amount or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 50,000;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property owned or used by Network 40 or the Companies in the conduct of their business (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $50,000 and with terms of less than one year);
(iv) each licensing agreement or other Contract to which Network 40 or either Company is a party with respect to any Contract entered into in the Ordinary Course of Business for the purchase of servicesIntellectual Property Rights, goodsincluding agreements with current or former employees, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companyconsultants, or such other form documents as are ordinarily used to memorialize such a transaction); (e) contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fv) any each collective bargaining agreement and other Contract, to which Network 40 or other agreement either Company is a party, to or with any labor union; union or other employee representative of a group of employees;
(gvi) any each joint venture, partnership or partnership, and other Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Network 40 or either Company with any other Person; ;
(hvii) any each Contract containing covenants that in any way purport to restrict the business activity of Network 40 or either Company or any Acquired Company Affiliate thereof or limit the freedom of any Acquired Company of them to engage in any line of business or to compete with any Person; ;
(iviii) any each Contract to which Network 40 or either Company is a party providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each power of attorney granted by Network 40 or either Company that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts each Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by Network 40 or either Company to be responsible for consequential damages;
(jxi) any each Contract to which provides for, Network 40 or relates to, the incurrence by an Acquired either Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at is a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment party for capital expenditures in excess of $250,000 for a single project 50,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by Network 40 or either Company other than in the aggregate)Ordinary Course of Business; and
(nxiii) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any foregoing. Part 3.17(a) of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Acquired CompaniesContracts, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies the amount of the Contracts listed in SCHEDULES 5.11.2remaining commitment of Network 40 or the Companies under the Contracts, 5.12, 5.13.2 AND 5.15.1, as in effect on and the date office of this Agreement. Neither Network 40 or the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice where details relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the BusinessContracts are located.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (SFX Entertainment Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Purchaser true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market of an amount or value in excess of $50,000 10,000.00;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person or more Acquired Companies of an amount or value in excess of $10,000.00;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods one or materials by the more Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Companies in excess of $50,000 10,000.00;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000.00 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate of an Acquired Company or limit the freedom of any Acquired Company or any Affiliate of an Acquired Company to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) provides for an express undertaking by any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; to be responsible for consequential damages;
(kxii) any each Applicable Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 10,000.00;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the aggregate); Ordinary Course of Business;
(nxiv) each Owned Mortgage Loan and any sale Servicing Agreements and leaseback arrangements escrow agreement relating thereto;
(xv) each Applicable Contract with each of the Company's Investors, and
(xvi) each amendment, supplement, and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any foregoing;
(a) of the Assets; (s) any Contract that involves an account receivable or note receivable Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of more than $100,000; the remaining commitment of the Acquired Companies under the Contracts, and (t) any other Contract which is material to the Acquired Companies, as a whole' office where details relating to the Contracts are located.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies (b) Except as set forth in Part 3.17(b) of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractDisclosure Letter:
(i) constitutes a valid no Seller (and binding no Related Person of Sellers) has or may acquire any rights under, and no Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company party thereto Company; and, to the Knowledge of Seller, of each other party thereto; and
(ii) no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as to set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company party thereto, and, to is and at all times has been in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the Knowledge of Seller, as to assets owned or used by such Acquired Company is or was bound;
(ii) each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is and at all times has been, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an no Acquired Company has given to or that relates to the Business received from any other Person at any time any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any of the Assets owned or used byContract.
(e) There are no renegotiations of, an Acquired Company; and (b) attempts to the Knowledge of Seller, no officer, director, agentrenegotiate, or employee of an outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company is bound by under current or completed Contracts with any Contract that purports to limit the ability of Person and no such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice The Contracts relating to the Business sale, design, manufacture, or provision of products or services by the Acquired CompanyCompanies have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Sources: Stock Purchase Agreement (NHP Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.20(a) contains an accurate and complete list, and Interim has delivered to Wizzard accurate and complete copies, of:
(i) each Interim Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one Interim of an amount or more Acquired Companies with a fair market value in excess of $50,000 3,000;
(ii) each Interim Contract that involves performance of services or delivery of goods or materials to any one Person Interim of an amount or value in excess of $3,000;
(except (iiii) any each Interim Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Interim in excess of $50,000 3,000;
(iv) each Interim Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $3,000 and with a term of less than one year);
(v) each Interim Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(vi) each Interim Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company Interim with any other Person; ;
(hvii) any each Interim Contract containing covenants that in any way purport to restrict the business Business activity of any Acquired Company or limit the freedom of any Acquired Company Interim to engage in any line of business or to compete with any Person; ;
(iviii) any each Interim Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Interim that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts each Interim Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by Interim to be responsible for consequential damages;
(jxi) any each Interim Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 3,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do xii) each Interim Contract not exceed $500,000 denominated in U.S. dollars;
(xiii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Interim other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each amendment, supplement and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeforegoing.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed (b) Except as set forth in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractSchedule 3.20(b):
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, each Interim Contract identified or required to the Knowledge of Seller, of each other party thereto; and (iibe identified in Schedule 3.20(a) is in full force and effect as and is valid and enforceable in accordance with its terms;
(ii) each Interim Contract identified or required to be identified in Schedule 3.20(a) will not be subject to cancellation or termination by the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract simply as a result of the consummation of the Contemplated Transactions; and
(iii) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of SellerInterim, fact no Interim Contract identified or required to be identified in Schedule 3.20(a) could reasonably be expected to have, upon completion or performance thereof, a Interim Material Adverse Affect.
(c) Except as set forth in Schedule 3.20(c):
(i) Interim has been and is in compliance with all applicable terms and requirements of each Interim Contract;
(ii) to Interim's Knowledge, each Third Party that has or had any obligation or liability under any Interim Contract has been and is in full compliance with all applicable terms and requirements of such Contract;
(iii) to Interims Knowledge, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, with or result in a violation or breach of Breach of, or give Interim or any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Applicable Interim Contract.;
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor to Interim's Knowledge, no event has occurred or circumstance exists under or by virtue of any Related Person Contract that (with or without notice or lapse of Seller (excluding time) would cause the creation of any Encumbrance affecting any of the Acquired CompaniesAssets; and
(v) Interim has any rights not given to or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to received from any other Person any notice or other communication (whether oral or written) regarding any actual, alleged, possible or potential violation or Breach of, or default under, any Interim Contract.
(d) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any inventionmaterial amounts paid or payable to Interim under current or completed Interim Contracts with any Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation.
(e) Each Interim Contract relating to the sale, improvementdesign, manufacture or provision of products or services by Interim has been entered into in the Ordinary Course of Business of Interim and has been entered into without the commission of any act alone or in concert with any other Person, or discovery any consideration having been paid or promised, that is or would be in connection with the Businessviolation of any Legal Requirement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Wizzard Software Corp /Co)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Section 4.11(a) of the Disclosure Schedule contains a list of all the Applicable Contracts (the Applicable Contracts required to be disclosed in Section 4.11(a) of the Disclosure Schedule collectively referred to as the “Material Contracts”), including, without limitation:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves performance of services by the future Company of an amount or value in excess of $50,000 per annum;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials by one to the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 to per annum;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contracts affecting the ownership of, leasing of, title to, use of, or any one Person leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $50,000 per annum);
(iiv) each licensing agreement (by the Company or by any of its Subsidiaries to a Person or by a Person to the Company or any of its Subsidiaries) or other Applicable Contract entered into with respect to Patents, Trademarks, Copyrights, Software, Trade Secrets or other Intellectual Property and all other Applicable Contracts affecting the Company’s or any of its Subsidiaries’ ability to use or disclose any Intellectual Property, including, without limitation, agreements with former or current employees, consultants, contractors or any other Persons regarding the ownership, assignment, appropriation or the non-disclosure of any Intellectual Property (except for off-the-shelf shrinkwrap or click-through contracts and licenses of commercially available, unmodified desktop software (provided in executable form only) purchased by the Company or its Subsidiaries in the Ordinary Course of Business for the sale of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or Business);
(iiv) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 (except any Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hvi) any Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or limit the freedom of any Acquired Company to engage in any line of business or to compete with any Person; (i) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods and (y) Contracts entered into in that involves expenditures or receipts of the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; of $50,000 per annum;
(lvii) any employment each Applicable Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 50,000;
(viii) each Applicable Contract for the employment of any officer, individual employee or other Person on a single project full-time or consulting basis with an annual base salary in excess of $90,000;
(it being warranted that ix) each Applicable Contract relating to the commitments borrowing of money or to mortgaging or pledging (or for all undisclosed Contracts which the holder of any indebtedness has an existing right, contingent or otherwise, to be secured by) any portion of the assets of the Company or any of its Subsidiaries;
(x) each Applicable Contract relating to the acquisition of a business or, except for such projects do not exceed $500,000 inventory and other tangible property acquired in the aggregate); Ordinary Course of Business, assets having a fair market value in excess of $50,000 that contains any continuing obligations of the Company or any Subsidiary thereunder;
(nxi) any each Applicable Contract relating to the sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of assets involving more than $100,000; and (t) 50,000 that contains any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies continuing obligations of the Contracts listed Company or any Subsidiary thereunder, other than sales of inventory in SCHEDULES 5.11.2the Ordinary Course of Business;
(xii) each marketing or advertising agreement;
(xiii) each power of attorney;
(xiv) each exclusive dealing arrangement or contract requiring the Company or any Subsidiary to fulfill any minimum volume requirements or similar take-or-pay arrangements;
(xv) each Applicable Contract that (a) provides for the Company to be the exclusive provider of any products or service to any person in any geographic area or during any period of time, 5.12(b) limits or purports to limit the ability of the Company to compete in any line of business or with any person in any geographic area or during any period of time or (c) would limit or otherwise restrict Buyer or any Subsidiary or Affiliate of Buyer from engaging or competing in any line of business or in any geographical area or require the use of any service provider;
(xvi) each Applicable Contract with any Governmental Entity to which the Company is a party;
(xvii) each settlement, 5.13.2 AND 5.15.1conciliation or similar agreement which requires the Company or its Subsidiaries, as in effect on after the date of this Agreement. Neither the Acquired Companies nor, to pay consideration in excess of $50,000 to any third parties or to satisfy monitoring or reporting obligations to any governmental entity outside the Knowledge Ordinary Course of SellerBusiness;
(xviii) each other agreement, commitment, arrangement or plan not made in the Ordinary Course of Business that is material to the Company and the Subsidiaries, taken as a whole; and
(xix) each amendment, supplement, and modification (whether oral or written) in respect of any other party theretoof the foregoing.
(b) With respect to each such Material Contract, is except as set forth in default under any Contract. Each Contract
Section 4.11(b) of the Disclosure Schedule: (i) constitutes the Material Contract is a valid legal, valid, binding and binding enforceable obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party theretoand in full force and effect; and (ii) is the Material Contract will continue to be a legal, valid, binding and enforceable obligation of the Company and in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) identical terms following the consummation of the Contemplated Transactions. No event has occurred ; (iii) there exists no event, occurrence, condition or act which, with the giving of notice or the lapse of time, would become a breach or default, or permit termination, modification, or acceleration, by the Company or, to the Knowledge of Sellerthe Company, fact or circumstance exists that (with or without notice or lapse of time) may contraveneby any third party, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired CompanyMaterial Contract; and (biv) no party has repudiated any provision of the Material Contract. The Company has performed in all material respects all of its obligations under the Material Contracts and neither the Company nor, to the Knowledge of Sellerthe Company, no officerany third party, directoris in breach or default with respect to any obligation to be performed under any Material Contract, agentwhich breach or default (when taken together with any such other breaches and defaults) could reasonably be expected to materially and adversely affect the Company. The Company does not have any present expectation or intention of not fully performing any obligation pursuant to any Material Contract. The Company has provided Buyer with a true and correct copy of all written Material Contracts, in each case together with all amendments, waivers or employee other changes thereto (all of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (iwhich are disclosed in Section 4.11(a) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (iiDisclosure Schedule). Section 4.11(a) assign to of the Disclosure Schedule also contains an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Businessaccurate and complete description of all material terms of all oral Material Contracts.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Healthextras Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Contract for Section 3.15(a) of the purchase Seller Disclosure Letter contains a complete and accurate list, and Seller has delivered or sale of Real Property; (b) any Contract made available to Buyer true and complete copies (or group summaries) as of related the date hereof, of:
(i) each Applicable Contract pursuant to which any Acquired Entity has outstanding obligations or similar Contracts) has not been fully paid that involves the future delivery of power with respect to any Solar Power Project;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials by one any Acquired Entity of an amount or more Acquired Companies with a fair market value in excess of $50,000 to any one Person 50,000;
(except (iiii) any each Applicable Contract entered into in the Ordinary Course that involves performance of Business for the sale services or delivery of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials Entity of an amount or inventory from any Person with a fair market value in excess of $50,000 50,000;
(except iv) each lease, rental or other occupancy agreement (whether written or oral), license, installment and conditional sale agreement of any Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices Entity that is represented solely by an Applicable Contract and that (A) has a purchase ordervalue per item or aggregate payment of greater than $50,000 and (B) has a term of greater than one year or is not cancelable on sixty (60) or less days’ notice;
(v) each licensing agreement with respect to patents, an acknowledgement from the Acquired Companytrademarks, copyrights, or such other form documents as are ordinarily used intellectual property of any Acquired Entity that is an Applicable Contract, excluding any license agreement relating to memorialize such commonly available software programs with a transaction); license fee of less than $20,000 in which Acquired Entity is licensee;
(evi) each joint venture agreement or partnership agreement that is an Applicable Contract of any Guaranty or similar undertaking of the obligations of customersAcquired Entity, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or and each other agreement with any labor union; (g) any joint venture, partnership or other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company Entity with any other Person; ;
(hvii) each Applicable Contract of any Contract Acquired Entity containing covenants that in any way purport could reasonably be expected to restrict the business activity of any such Acquired Company Entity or limit the freedom of any such Acquired Company Entity to engage in any line of business or to compete with any Person; ;
(iviii) each power of attorney of any Acquired Entity that is an Applicable Contract providing for payments or any other agreement entered into by such Acquired Entity that grants authority to or by any Person based to act on sales, purchases behalf of such Acquired Entity that is currently effective and outstanding;
(ix) each Applicable Contract of any Acquired Entity containing any “change in control” or profits, other than similar provisions; and
(x) direct payments each written warranty, guaranty of contractual performance, including without limitation any production guarantees, extended by any Acquired Entity that is or is part of an Applicable Contract involving payment for goods Acquired Entity good and (y) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole50,000.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(ib) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aSection 3.15(b) neither Seller nor any Related Person of Seller (excluding any of the Seller Disclosure Letter: no Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; Entity and (b) to the Knowledge of Seller, no officer, director, agent, manager or employee of an any Acquired Company Entity is bound by any Contract that purports to limit the ability of such Acquired Entity, officer, director, agent manager or employee, employee to (iA) engage in or continue any conduct, activity, or practice relating to the Business business of the Acquired CompanyEntity, or (iiB) assign to an Acquired Company Entity or to any other Person any rights to any invention, improvement, or discovery relating to the business of Acquired Entity.
(c) Except as set forth in connection Section 3.15(c) of the Seller Disclosure Letter:
(i) Each Acquired Entity is in compliance in all material respects with all applicable terms and requirements of each Contract identified or required to be identified in Section 3.15(a) of the BusinessSeller Disclosure Letter (each, a “Disclosed Contract”) and is in compliance in all material respects with all Legal Requirements pertaining to each such Contract;
(ii) To the Knowledge of Seller, each other party to a Disclosed Contract is in compliance with all applicable terms and requirements of such Disclosed Contract.
(iii) No event has occurred or circumstance exists that could reasonably be expected to (with or without notice or lapse of time) contravene, conflict with, or result in a violation or breach of, or give rise to the right of another Person to declare a default or to accelerate the maturity or performance of a Disclosed Contract;
(iv) Since the date of each Disclosed Contract, no Acquired Entity has given to or received from any other Person, any written notice (that has not been resolved as of the date hereof) regarding any actual or alleged (and neither such Acquired Entity nor any other Person is now in) breach of, or default under, each such Disclosed Contract; and
(v) All of the Disclosed Contracts are valid and binding obligations of the Acquired Entity party thereto and are enforceable against such Acquired Entity in accordance with their terms, except to the extent that the enforceability thereof may be affected by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally or by court-applied equitable principles.
(d) Except as set forth in Section 3.15(d) of the Seller Disclosure Letter, there are no current renegotiations of, or outstanding rights to renegotiate or attempts to renegotiate, any material amounts paid or payable to any Acquired Entity under any Disclosed Contract by any other party thereto and no such party has made a written demand for such renegotiation.
(e) The Contracts related to the Solar Energy Systems or the sale, design, manufacture, or provision of power or other services from any Solar Power Project by any Acquired Entity have been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Atlantic Tele Network Inc /De)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Section 3.17 of the Company's Schedule contains a complete and accurate list, and the Company has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market of an amount or value in excess of $50,000 to any 15,000 annually;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to, or employment by, one Person or more Acquired Companies of an amount or value in excess of $25,000 annually;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods one or materials by the more Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Companies in excess of $50,000 25,000 annually;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 annually and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property;
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to materially restrict the business activity of any Acquired Company or limit materially the freedom of any Acquired Company to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) provides for an express undertaking by any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; to be responsible for consequential damages;
(kxii) any each Applicable Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 25,000 annually;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each amendment, supplement and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing modification in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeforegoing.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(ib) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: Section 3.17(b) of the Company's Schedule:
(ai) neither no Seller nor any (and no Related Person of Seller (excluding any of the Acquired CompaniesSeller) has or may acquire any rights under, and no Seller has or obligations under may become subject to any obligation or liability under, any Contract with an Acquired Company or that relates specifically, and is material, to the Business business of, or any of the Assets assets owned or used by, an any Acquired Company; and and
(bii) to the Knowledge of Sellerthe Company, no officer, director, agent, employee, consultant, or employee contractor of an any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or agent, employee, consultant, or contractor to (iA) engage in or continue any conduct, activity, or practice relating to the Business business of the any Acquired Company, or (iiB) assign to an any Acquired Company or to any other Person any rights to any invention, improvement, or discovery discovery.
(c) Except as set forth in connection Section 3.17(c) of the Company's Schedule, each Applicable Contract is in full force and effect and is valid and enforceable in accordance with its terms, except where the Businessfailure of such Applicable Contract to be in full force and effect or valid and enforceable would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company.
(d) Except as set forth in Section 3.17(d) of the Company's Schedule:
(i) each Acquired Company is, and at all times since January 1, 1997 has been, in material compliance with all applicable terms and requirements of each Applicable Contract, except where the failure to be in such compliance would not, individually or in the aggregate, have a material adverse effect on the business, financial condition or results of operations of the Company;
(ii) to the Knowledge of the Company, each other Person that has or had any obligation or liability under any Applicable Contract, and at all times since January 1, 1997 has been, in material compliance with all applicable terms and requirements of such
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set 3.16.1 Part 3.16 of the Disclosure Schedule sets forth a complete and accurate list and RTI has delivered to IPI true and complete copies, of all of the contracts of RTI described below and currently in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: effect:
(a) any Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) contract that involves the future performance of services or delivery of goods or materials by one RTI of an aggregate amount or more Acquired Companies with a fair market value in excess of $50,000 to any one Person 15,000 per annum;
(except (ib) any Contract contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); RTI in excess of $15,000 per annum;
(c) any Contract that is an outputcontract related to any lease, requirements rental or exclusive dealings occupancy agreement, license, installment and conditional sale agreement, and other contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (as such except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $15,000 per annum and with terms are used in Article 2 of the Uniform Commercial Codeless than one year); ;
(d) any Contract that requires contract with respect to RTI's Intellectual Property Assets, including agreements with current or commits any Acquired Company to purchase servicesformer employees, goods, materials or inventory from any Person with a fair market value in excess of $50,000 (except any Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companyconsultants, or such other form documents as are ordinarily used to memorialize such a transaction); contractors regarding the appropriation of RTI's Intellectual Property Assets;
(e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) contract with respect to any collective bargaining agreement or other agreement with any labor union; union or other employee representative of a group of employees;
(gf) any joint venture, partnership or partnership, and other Contract contract (however named) involving a RTI sharing of any profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hg) any Contract contract containing covenants that in any way purport to restrict the business activity of any Acquired Company RTI or limit the freedom of any Acquired Company RTI to engage in any line of business or to compete with any Person; Person in any geographical area;
(ih) any Contract contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods goods;
(i) any power of attorney that is currently effective and (y) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; outstanding;
(j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment contract for capital expenditures in excess of $250,000 15,000 per annum;
(k) any contract involving financing or borrowing of money, or evidencing indebtedness, any liability for a single project (it being warranted that borrowed money, any obligation for the commitments for all undisclosed Contracts for such projects do not exceed deferred purchase price of any property in excess of $500,000 15,000 per annum, other than in the aggregate); Ordinary Course of Business;
(l) any contract with any Governmental Body;
(m) any contract with or between the Shareholders;
(n) any sale and leaseback arrangements and installment purchase arrangements; written warranty, guaranty, and/or other similar undertaking with respect to contractual performance extended by RTI other than in the Ordinary Course of Business;
(o) any management or operating agreements; (p) any Contracts containing amendment, supplement, and modification in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing writing with respect of any of the Assets foregoing; excluding end-user licenses and reseller agreements, the forms of which shall be provided by RTI to IPI (each contract set forth in Part 3.16 of the Disclosure Schedule, an "Applicable Contract" and collectively, the "Applicable Contracts"). Part 3.16 also includes a reasonably complete description of the Applicable Contracts, including the identities of the parties to each Applicable Contract, RTI's remaining commitment under each Applicable Contract and RTI's office where details concerning each Applicable Contract are located.
3.16.2 Except as set forth in Part 3.16 of the Disclosure Schedule:
(a) neither Shareholder (nor any related Person of either Shareholder) has or may acquire any maintenance rights under, and neither Shareholder has or service agreements relating may become subject to any obligation or liability under, any contract that relates to the business of, or any of the Assets; assets owned or used by, RTI;
(sb) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of SellerRTI and the Shareholders, no officer, director, agent, employee, consultant, or contractor of RTI is bound by any contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of RTI, or (B) assign to RTI or to any other party theretoPerson any rights to any invention, is in default under any Contract. Each Contractimprovement, or discovery;
(ic) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) Applicable Contract is in full force and effect and is valid and enforceable in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors' rights generally, and (ii) as limited by laws relating to the Acquired Company party theretoavailability of specific performance, and, injunctive relief or other equitable remedies;
(d) RTI is in material compliance with all applicable terms and requirements of each Applicable Contract under which such RTI has or had any obligation or liability or by which RTI or any of the assets owned or used by RTI is or was bound;
(e) to the Knowledge of SellerRTI and the Shareholders, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing Person that has or registration with, had any obligation or Consent of, liability under any Person Applicable Contract under which an RTI has or had any rights is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force material compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated Transactionscontract;
(f) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of SellerRTI and the Shareholders, fact no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired Company RTI or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.;
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (bg) to the Knowledge of SellerRTI and the Shareholders, no officerRTI has not given to or received from any other Person at any time, directorany written notice or other communication regarding any actual, agentalleged, possible, or employee of an Acquired Company is bound by potential violation or breach of, or default under, any Applicable Contract.
(h) there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to RTI under any Applicable Contract that purports to limit the ability of with any Person and no such officer, director, agent or employee, to Person has made written demand for such renegotiation; and
(i) engage in or continue any conduct, activity, or practice all contracts relating to the Business of the Acquired Companysale, design, manufacture, or (ii) assign to an Acquired Company provision of products or to services by RTI have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person any rights to any invention, improvementPerson, or discovery any consideration having been paid or promised, that is or would be in connection with the Businessviolation of any Legal Requirement.
Appears in 1 contract
Sources: Agreement of Merger and Plan of Reorganization (Island Pacific Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and the Company has delivered to the Purchaser true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 to any one Person 50,000;
(except (iii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods and that involves expenditures or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 receipts of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 50,000;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any assets of the Company (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $50,000 and with terms of less than one year);
(iv) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fv) any each collective bargaining or agreement and other agreement Applicable Contract with any labor union; union or other employee representative of a group of employees;
(gvi) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hvii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or materially limit the freedom of any Acquired the Company to engage in any line of business or to compete with any Person; ;
(iviii) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods and (y) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at having a price or prices materially value in excess of, or materially lower than, those currently available; of $50,000;
(lix) any employment each Applicable Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 50,000;
(it being warranted that x) each written warranty, guaranty, and/or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate); Ordinary Course of Business;
(nxi) any sale and leaseback arrangements and installment purchase arrangements; each written complaint received by the Company from a customer during the twelve (o12) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract month period preceding the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtednessdate hereof, the sale net affect of which would be the likely cancellation or lease termination of property a Contract having a value in excess of $50,000; and
(xii) each amendment, supplement, and modification (whether oral or distributions or transfers to shareholders (by dividend or otherwise); (rwritten) any other Contract that materially and adversely affects the ownership or leasing in respect of any of the Assets or any maintenance or service agreements relating to any foregoing. Part 3.17(a) of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Acquired CompaniesContracts, as a wholethe amount of the remaining commitment of the Company under the Contracts.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies (b) Except as set forth in Part 3.17(b) of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on Disclosure Letter:
(i) none of the date of this Agreement. Neither the Acquired Companies Key Stockholders nor, to the Knowledge of Sellerthe Company, any Related Person of the Key Stockholders has or may acquire any rights under, and none of the Key Stockholders nor such Related Person has or may become subject to any obligation or liability under, any Contract that relates to the business of the Company, or any of the assets owned or used by, the Company; and
(ii) no officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of the Company, or (B) assign to the Company or to any other party theretoPerson any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in default under any Contract. Each Contractforce and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) constitutes a valid the Company is and binding has been in compliance in all material respects with all applicable terms and requirements of each Contract under which the Company has or had any obligation or liability or by which the Company or any of the Acquired assets owned or used by the Company party thereto and, to the Knowledge of Seller, of each other party thereto; and is or was bound;
(ii) is in full force and effect as to the Acquired Company's Knowledge, each other Person that has or had any obligation or liability under any Contract under which the Company party theretohas or had any rights is, andand at all times has been, in compliance in all material respects with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2Company's Knowledge, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired Company or the other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.;
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) Company has any rights not given to or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to received from any other Person any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract; and (v) the Company is not aware of any state of facts that would cause a reasonable person to believe that the Company's future sales will not equal such sales for 1996 or 1997.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any inventionmaterial amounts paid or payable to the Company under current or completed Contracts with any Person and no such Person has made written demand for such renegotiations.
(f) The Contracts relating to the sale, improvementdesign, manufacture, or discovery provision of products or services by the Company have been entered into in connection the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with the Businessany other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any of Seller’s Disclosure Schedule contains an accurate and complete list of: each Company Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market of an amount or value in excess of $50,000 50,000; each Company Contract that involves performance of services for or delivery of goods or materials to any one Person (except (i) any or more Acquired Companies of an amount or value in excess of $50,000; each Company Contract that was not entered into in the Ordinary Course of Business for and that involves the sale expenditure or receipt by one or more Acquired Companies of goods an amount or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 50,000; each Company Contract that is a (except any Contract entered into A) mortgage, indenture, note, installment obligation or other instrument relating to the borrowing of money, (B) letter of credit, bond or other indemnity (including letters of credit, bonds or other indemnities as to which an Acquired Company is the beneficiary but excluding endorsements of instruments for collection in the Ordinary Course of Business Business) or (C) currency or interest rate swap, collar or hedge agreement that will not be released as to the Acquired Companies as of Closing; each Company Contract affecting the ownership of, leasing of, title to, use of, or any other interest in any real or personal property (except personal property leases and installment and conditional sales agreements having a term of less than one year); each Company Contract with respect to Intellectual Property (including Contracts with current or former employees, consultants or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property) except for the purchase of services, goods, materials or inventory any license implied by the sale of a product and perpetual, paid-up licenses for commonly available software programs with a value of less than $50,000 under which an Acquired Company at market prices that is represented solely the licensee, and the list identifies those pursuant to which an Acquired Company uses Intellectual Property owned by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction)third party; (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement each Company Contract with any labor union; (g) any joint venture, partnership union or other employee representative of a group of employees; each Company Contract with any employee or independent contractor providing services for an Acquired Company or the KES Business (however named) including covenants not to compete or other restrictive covenants); each Company Contract other than Company Plans involving a sharing of profits, losses, costs or liabilities Liabilities by any an Acquired Company with any other Person; (h) any each Company Contract containing covenants that in any way purport to restrict the business activity of any an Acquired Company or limit the freedom of any an Acquired Company to engage in any line of business or to compete with any Person; (i) any each Company Contract providing for payments to or by any Person based on or determined by reference to sales, purchases or profits, other than (x) direct payments for goods goods; each power of attorney that is currently effective and (y) Contracts outstanding; each Company Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) any Contract which provides for, or relates to, the incurrence for an express undertaking by an Acquired Company of Indebtednessto be responsible for consequential damages; (k) any each Company Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 50,000; and each written warranty, guaranty or other similar undertaking with respect to contractual performance extended by an Acquired Company other than in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment Ordinary Course of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2Business. Seller has furnished or made available delivered to Buyer a true and complete copy (in the case of each written Company Contract) or an accurate and correct copies complete written summary (in the case of each oral Company Contract) of each of the Company Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge Section 3.14(a) of Seller, any other party thereto, is in default under any Contract’s Disclosure Schedule. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) Contract is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party theretoand is valid and enforceable in accordance with its terms. Except as separately identified on SCHEDULE 5.15.2disclosed in Section 3.14(c) of Seller’s Disclosure Schedule, no notice to, filing or registration with, or Consent of, (i) neither an Acquired Company nor any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving other party to a Company Contract has Contravened any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation applicable terms of the Contemplated Transactionsa Company Contract; (ii) following the consummation of the Contemplated Transactions. No no event has occurred or, (including the transfer of the Acquired KES Assets to the Knowledge of Seller, fact SSPS) or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, constitute or result directly or indirectly in a violation or breach Contravention of or give any Company Contract; and (iii) no Acquired Company has given or received notice or other Person the right communication (written or oral) regarding any actual, alleged or potential Contravention of any Company Contract. No party to declare a default or exercise Company Contract has repudiated any remedy under, or to accelerate the maturity or performance provision of it. There currently are no renegotiations of, attempts to renegotiate or outstanding rights to cancelrenegotiate any Company Contracts, terminate or modifynor has any written demand for renegotiation been made. Seller has no Knowledge that any party to a Company Contract does not intend to renew it. Set forth in Section 3.14(e) of Seller’s Disclosure Schedule is a true and complete list and description of all warranty claims made against each Acquired Company and the KES Business by its customers since December 31, any Applicable Contract.
5.15.31997. Except as set forth in SCHEDULE 5.15.3: (aSection 3.14(a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Seller’s Disclosure Schedule, no Acquired Company or that relates to the Business is a member of, or party to, any of the Assets owned association, partnership, joint venture, consortium, profit or used byloss sharing arrangement or agency, an Acquired Company; and (b) to the Knowledge of Sellerlicensing, no officermarketing, directordistributorship, agent, purchasing or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent manufacturing agreement or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Business.arrangement. CUSTOMERS AND SUPPLIERS
Appears in 1 contract
Sources: Stock Purchase Agreement (Knowles Electronics Holdings Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in A. SCHEDULE 5.15.1 or as disclosed in 3.17(A) of the SoftDent Disclosure Schedule contains a complete and accurate list, and Ceramco has delivered (other than agreements on standard forms, the forms of which have been provided pursuant to this Agreement) to PracticeWorks true and complete copies, no Acquired Company is a party to or bound by: of:
(ai) any Each Applicable SoftDent Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one Company of an amount or more Acquired Companies with a fair market value annually in excess of $50,000 25,000;
(ii) Each Applicable SoftDent Contract that involves performance of services or delivery of goods or materials to any one Person Company of an amount or value annually in excess of $25,000;
(except (iiii) any Each Applicable SoftDent Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value annually in excess of $50,000 25,000;
(iv) Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable SoftDent Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments annually of less than $25,000 and with terms of less than one (1) year);
(v) Each employment or consulting agreement, contract or commitment with any Contract entered into officer or director or senior management employee Company engaged solely in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); SoftDent Business;
(evi) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any Each joint venture, partnership or partnership, and other similar Applicable SoftDent Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hvii) Each Applicable SoftDent Contract that is a joint marketing or development agreement under which Company has continuing obligations to jointly market any product, technology or service and which may not be canceled without penalty upon notice of ninety (90) days or less, or any Applicable SoftDent Contract pursuant to which Company has continuing obligations to jointly develop any intellectual property that will not be owned, in whole or in part, by Company and which may not be canceled without penalty upon notice of ninety (90) days or less;
(viii) Each Applicable SoftDent Contract currently in force to provide source code to any third party for any product or technology that is material to the SoftDent Business;
(ix) Each mortgage, indenture, guarantee, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing of money or extension of credit or granting any Encumbrance on any SoftDent Assets;
(x) Each settlement agreement relating to the SoftDent Business entered into within two (2) years prior to the date of this Agreement;
(xi) Each Applicable SoftDent Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or limit the freedom of any Acquired Company to engage in any line of business the SoftDent Business or to compete with any Person; Person in the SoftDent Business;
(ixii) Each Applicable SoftDent Contract with any Contract providing for payments to stockholder of Ceramco or by any Person based on sales, purchases or profits, of such stockholder's Affiliates (other than SoftDent LLC);
(xxiii) direct payments Each Applicable SoftDent Contract under which Company has advanced or loaned any amount to any SoftDent Personnel (other than advances of expenses in the Ordinary Course of Business);
(xiv) Each advertising services, e-commerce or other Applicable SoftDent Contract involving the promotion of products and services of third parties by Company;
(xv) Each Applicable SoftDent Contract pursuant to which Company is obligated to provide maintenance, support or training for goods its services or products;
(xvi) Each power of attorney relating to the SoftDent Business that is currently effective and outstanding;
(yxvii) Contracts To Company's Knowledge, each Applicable SoftDent Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) any Contract which provides for, or relates to, the incurrence for an express undertaking by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services to be responsible for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Business.consequential damages;
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Annex 3.17(a) to this Schedule B contains a complete and accurate list, and Cinemex has, in the case of written Contracts, made available to Investors true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired of the Cinemex Companies with a fair market of an amount or value in excess of $50,000 1'000,000 pesos (excluding Contracts that are terminable by a Cinemex Company without penalty or cost to any one Person the Cinemex Companies in excess of $1'000,000 pesos);
(except (iii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods or materials by the Acquired Company at market prices and that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment involves expenditures or other expense liabilities and/or receipts of one or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 more of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Cinemex Companies in excess of $50,000 1'000,000 pesos (excluding Contracts that are terminable by a Cinemex Company without penalty or cost to the Cinemex Companies in excess of $1'000,000 pesos);
(iii) each loan agreement, promissory note, bond, letter of credit or other Applicable Contract evidencing Cinemex Indebtedness or any guarantee or similar obligation of any Cinemex Company with respect to indebtedness for borrowed money or any other similar payment obligation of any Person (other than any Cinemex Company);
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other similar interest in, any real or personal property (except any personal property lease having payments of less than $1'000,000 pesos and with a term of less than one (1) year);
(v) each material licensing agreement or other material Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any intellectual property other than (x) any licensing agreements or other Applicable Contracts entered into by any Cinemex Company in the Ordinary Course of Business for which primarily relate to the purchase exhibition by such Cinemex Company of services, goods, materials a particular motion picture or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement (y) "shrink-wrap" or other software licenses generally available from the Acquired Company, commercial venders or such other form documents as are ordinarily used to memorialize such a transaction); retailers which do not require ongoing royalty payments;
(evi) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other similar Applicable Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Cinemex Company with any other Person; , excluding Contracts entered into in the Ordinary Course of Business by a Cinemex Company;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Cinemex Company or any affiliate of any Cinemex Company or limit the freedom of any Acquired Cinemex Company or any affiliate of any Cinemex Company to engage in any line of business or to compete with any Person; Person or in any territory;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods and (y) goods, excluding Contracts entered into in the Ordinary Course of Business with employees by a Cinemex Company;
(x) other than those held by Messrs. Davila, Fastlicht and other sales personnel paying commissions Heyman, each power of attorney for (A) ▇▇▇▇ of ownership, (B) acts of management or bonuses; (jC) any Contract to subscribe or execute negotiable instruments, in each case, that is currently effective and outstanding and which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was will not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued be terminated prior to termination); the Effective Time;
(mxi) any each Applicable Contract that involves any agreement or commitment under which a Cinemex Company is committed for individual capital expenditures in excess of $250,000 for a single project 2'500,000 pesos or aggregate capital expenditures in excess of $10'000,000 pesos;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (nxii) any sale and leaseback arrangements and installment purchase arrangements; (o) any management each employment, consulting or operating agreements; (p) any Contracts containing in any case a specific clause other similar Applicable Contract with employees or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment consultants of any amount previously paidCinemex Company remaining in effect after the Effective Date and which are not terminable at the will of the applicable Cinemex Company without cost or liability to any Cinemex Company; and
(qxiii) any agreement that restricts the maintenance each amendment, supplement, and modification (whether oral or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (rwritten) any other Contract that materially and adversely affects the ownership or leasing in respect of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeforegoing.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(ib) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aAnnex 3.17(b) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) this Schedule B to the Knowledge of Seller, Cinemex no officer, director, agent, key employee, consultant or employee contractor of an Acquired any Cinemex Company is bound by any Contract that purports to limit the ability of such officer, director, agent or agent, key employee, consultant, or contractor to (i) engage in or continue any conduct, activity, or practice relating material to the Business business of the Acquired any Cinemex Company, or (ii) assign to an Acquired any Cinemex Company or to any other Person any rights to any invention, improvementimprovement or discovery.
(c) Except as set forth in Annex 3.17(c) to this Schedule B, or discovery each Contract required to be identified in connection Annex 3.17
(a) to this Schedule B is in full force and effect and is valid and enforceable against the Cinemex Company party thereto in accordance with the Businessits terms.
(d) Except as set forth in Annex 3.17
Appears in 1 contract
Sources: Inducement Agreement (Loews Cineplex Entertainment Corp)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no (a) Quiksilver has provided Buyer with a list of each Material Contract to which any Acquired Company is a party or by which any Acquired Company is bound. The following Contracts shall be deemed to or bound by: (a) be Material Contracts; any Contract for the purchase or sale of Real Property; that:
(bi) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market of an amount or value in excess of $50,000 to any one Person (except (i) any Contract 100,000 in the aggregate, other than sales Contracts entered into in the Ordinary Course ordinary course of Business for the sale business;
(ii) involves performance of services or delivery of goods or materials by the to one or more Acquired Company at market prices that is represented solely by a customer purchase order, Companies of an acknowledgment from the Acquired Company, amount or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 100,000 in the aggregate, other than purchases from vendors in the ordinary course of business;
(except any Contract iii) was not entered into in the Ordinary Course ordinary course of Business for business and that involves expenditures or receipts of one or more Acquired Companies in excess of $100,000 in the purchase of servicesaggregate;
(iv) is a lease, goodsrental or occupancy agreement, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase orderlicense, an acknowledgement from the Acquired Companyinstallment and conditional sale agreement, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership or other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (however namedexcept personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $50,000 and with terms of less than one year);
(v) is a licensing agreement or other Contract with respect to patents, trademarks, copyrights, or other intellectual property, other than standard non-disclosure agreements with employees and consultants regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets and other than entered in the ordinary course of business;
(vi) is a joint venture or partnership involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hvii) any Contract containing contains covenants that in any way purport to restrict the business activity of any Acquired Company or limit limits the freedom of any Acquired Company to engage in any line of business or to compete with any Person; ;
(iviii) requires any Contract Acquired Company to incur in excess of $100,000 in the aggregate for capital expenditures;
(ix) is a sales agency, marketing or distribution agreement of the Acquired Companies;
(x) is an agreement by any Acquired Company to purchase any capital stock or other debt or equity securities of any Person;
(xi) is an agreement (or group of related agreements) under which any Acquired Company has created, incurred, or guaranteed any indebtedness for borrowed money, or any capitalized lease obligation or under which it has imposed an Encumbrance on any of its assets, tangible or intangible;
(xii) is an agreement of any Acquired Company concerning noncompetition or restricting any Acquired Company’s ability in any way to conduct its business or use its assets;
(xiii) is a profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or change in control (exclusive of generally applicable severance policy) or other material plan or arrangement for the benefit of any of the Acquired Companies’ current or former stockholders, managers, directors, officers or employees;
(xiv) is a collective bargaining agreement;
(xv) is an employment agreement providing for payments to or by any Person based on sales, purchases or profits, other than (x) direct payments for goods and (y) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 100,000, in the aggregate); ;
(nxvi) is a Contract between or among any sale Acquired Company on the one hand, and leaseback arrangements and installment purchase arrangements; any Seller Affiliate on the other hand;
(oxvii) is an agreement for the engagement as an independent contractor of any management or operating agreements; (p) individual by any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party Acquired Company providing for payments to such Contract independent contractor in excess of $100,000, in the right to renegotiate aggregate;
(xviii) is an agreement with a term of at least one (1) year and that is not terminable at the option (without penalty) of the applicable Acquired Company upon ninety (90) days’ prior notice;
(xix) is an agreement under which the consequences of a default or require termination would have a reduction Company Material Adverse Effect;
(xx) is a material amendment, supplement or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing modification of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeforegoing.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. (b) Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) Material Contract is in full force and effect as to the and is valid and enforceable in accordance with its terms.
(c) (i) each Acquired Company party thereto, and, to the Knowledge is in material compliance with all applicable terms and requirements of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify Material Contract under which such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights obligation or obligations under any Contract with an liability or by which such Acquired Company or that relates to the Business of, or any of the Assets assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an by such Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Business.bound;
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.17(a) contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 10,000 other than purchase orders received by the Company in the Ordinary Course of Business;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person the Company of an amount or value in excess of $10,000 other than purchase orders placed by the Company in the Ordinary Course of Business;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods and that involves expenditures or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 receipts of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 10,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Acquired Affiliate of the Company or limit the freedom of the Company or any Acquired Affiliate of the Company to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 10,000;
(it being warranted that xii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate)Ordinary Course of Business; and
(nxiii) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements foregoing. Schedule 3.17(a) sets forth information adequate to identify such Contracts, including the date and parties to the Contracts, and the Company's office where details relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeContracts are located.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract(b) [Intentionally Deleted]
(ic) constitutes a valid and binding obligation of the Acquired Company party thereto andExcept as set forth in Schedule 3.17(c), each Contract identified or required to the Knowledge of Seller, of each other party thereto; and (iibe identified in Schedule 3.17(a) is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Schedule 3.17(d):
(i) to Sellers' Knowledge the Acquired Company party theretois, andand at all times has been, in full compliance with all applicable terms and requirements of each Contract under which the Company has or had any obligation or liability or by which the Company or any of the assets owned or used by the Company is or was bound;
(ii) to the Sellers' Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, no notice toand at all times has been, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No to Sellers' Knowledge no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor the Company has not given to or received from any Related other Person of Seller at any time any notice or other communication (excluding whether oral or written) regarding any of the Acquired Companies) has any rights actual, alleged, possible, or obligations under any Contract with an Acquired Company potential violation or that relates to the Business breach of, or default under, any of Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Assets owned Company under current or used bycompleted Contracts with any Person and, an Acquired Company; and (b) to the Knowledge of SellerSellers and the Company, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Businesshas made written demand for such renegotiation.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Contract for the purchase or sale of Real Property; Sellers have delivered to Buyer true and complete copies of:
(bi) any Contract (or group of related or similar Contracts) each agreement that involves the future performance of services or delivery of goods or materials by one the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 to any one Person 10,000;
(except (iii) any Contract entered into in the Ordinary Course each agreement that involves performance of Business for the sale services or delivery of goods or materials by to the Acquired Company at market prices that is represented solely by a customer purchase order, of an acknowledgment from the Acquired Company, amount or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 10,000;
(except any Contract iii) each agreement that was not entered into in the Ordinary Course ordinary course of Business for business and that involves expenditures or receipts of the purchase Company in excess of services$5,000;
(iv) each lease, goodsrental or occupancy agreement, materials or inventory by license, installment and conditional sale agreement, and other agreement affecting the Acquired Company at market prices that is represented solely by a purchase orderownership of, an acknowledgement from the Acquired Companyleasing of, title to, use of, or such any leasehold or other form documents as are ordinarily used to memorialize such interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a transactionvalue per item or aggregate payments of less than $5,000 and with terms of less than one year); ;
(ev) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining each licensing agreement or other agreement with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Company's intellectual property assets;
(vi) each collective bargaining agreement and other agreements to or with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Contract agreements (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; person;
(hviii) any Contract each agreement containing covenants that in any way purport to restrict the business activity of the Company or any Acquired affiliate of the Company or limit the freedom of the Company or any Acquired affiliate of the Company to engage in any line of business or to compete with any Person; person;
(iix) any Contract each agreement providing for payments to or by any Person person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each agreement entered into other than in the Ordinary Course ordinary course of Business with employees and other sales personnel paying commissions business that contains or bonuses; provides for an express undertaking by the Company to be responsible for consequential damages;
(jxii) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any each agreement or commitment for capital expenditures in excess of $250,000 for a single project 5,000;
(it being warranted that xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate)ordinary course of business; and
(nxiv) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing.
(b) Neither Seller has or may acquire any maintenance rights under, and neither Seller has or service agreements relating may become subject to any obligation or liability under, any agreement that relates to the business of, or any of the Assets; assets owned or used by the Company, other than the lease of the Company's main facilities, which is leased from an affiliated entity.
(sc) To the knowledge of Sellers and the Company, no officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract agreement that involves an account receivable purports to limit the ability of such officer, director, agent, employee, consultant, or note receivable contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of more than $100,000; and the Company, or (tB) assign to the Company or to any other Contract which is material person any rights to the Acquired Companiesany invention, as a wholeimprovement, or discovery.
5.15.2. (d) Each agreement delivered or required to be delivered to Seller has furnished or made available pursuant to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (iiSection 2.16(a) is in full force and effect as to the Acquired and is valid and enforceable in accordance with its terms.
(e) The Company party theretois, andand at all times since January 1, to the Knowledge of Seller1997 has been, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect requirements of each agreement under which it has or had any obligation or liability or by which it or any of the assets owned or used it is or was bound.
(without breach by f) Each other person that has or had any obligation or liability under any agreement under which the Acquired Companies ofCompany has or had any rights is, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount and at all times since January 1, 1997 has been, in respect full compliance with all applicable terms and requirements of such Contract as a result of the consummation of the Contemplated Transactionsagreement.
(g) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired the Company or other Person person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contractagreement.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (ah) neither Seller nor The Company has not given to or received from any Related Person of Seller other person, at any time since January 1, 1997, any notice or other communication (excluding whether oral or written) regarding any of the Acquired Companies) has any rights actual, alleged, possible, or obligations under any Contract with an Acquired Company potential violation or that relates to the Business breach of, or default under, any agreement, other than the potential claim by KPMG and the dispute with Elis▇▇ ▇▇▇▇▇▇▇, ▇▇th of the Assets owned or used by, an Acquired Company; and (b) which have been disclosed to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to Buyer.
(i) engage in or continue any conductThere are no renegotiations of, activityattempts to renegotiate, or practice outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed agreements with any person and, to the knowledge of Sellers and the Company, no such person has made written demand for such renegotiation.
(j) The agreements relating to the Business of the Acquired Companysale, design, manufacture, or (ii) assign to an Acquired provision of products or services by the Company have been entered into in the ordinary course of business and have been entered into without the commission of any act alone or to in concert with any other Person any rights to any invention, improvementperson, or discovery any consideration having been paid or promised, that is or would be in connection with the Businessviolation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any ss.3.18(a) of the Sellers' Disclosure Schedule contains a complete and accurate list, if any, and the Sellers have delivered to the Buyer true and complete copies, if any, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 10,000.00 (excluding the rental of Rental Equipment in the Ordinary Course of Business);
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person the Company of an amount or value in excess of $5,000.00;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods and that involves expenditures or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 receipts of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 5,000.00;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $5,000.00 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Acquired Affiliate of the Company or limit the freedom of the Company or any Acquired Affiliate of the Company to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney, if any, that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract, if any, entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by the Company to be responsible for consequential damages;
(jxii) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 5,000.00;
(it being warranted that xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeforegoing.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Business.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 to any one Person 5,000;
(except (iii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods and that involves expenditures or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 receipts of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 5,000;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate annual payments of less than $5,000 and with terms of less than one year);
(iv) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fv) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvi) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hvii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or limit the freedom of any Acquired the Company to engage in any line of business or to compete with any Person; ;
(iviii) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each power of attorney that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by the Company to be responsible for consequential damages;
(jxi) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 5,000; and
(it being warranted that xii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate); Ordinary Course of Business.
(nb) any sale and leaseback arrangements and installment purchase arrangements; (oExcept as set forth in Part 3.17(b) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractDisclosure Letter:
(i) constitutes No Seller (and no related person of a valid Seller) has or may acquire any rights under, and binding no Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Acquired Company party thereto assets owned or used by, the Company; and, to the Knowledge of Seller, of each other party thereto; and
(ii) No officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of the Company, or (B) assign to the Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as to set forth in Part 3.17(d) of the Acquired Disclosure Letter:
(i) The Company party thereto, and, to is in full compliance with all applicable terms and requirements of each Contract under which it has any obligation or by which the Knowledge Company or any of Seller, as to the assets owned or used by the Company is bound;
(ii) each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, Person that has any Person obligation under any Contract under which the Company has any rights is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract; and
(iv) The Company has not given to or received from any other Person, any notice or other communication (whether oral or written) regarding any actual, alleged, or potential violation or breach of, or default under, any Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (ae) neither Seller nor There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any Related Person of Seller (excluding any of the Acquired Companies) has any rights material amounts paid or obligations under any Contract with an Acquired Company or that relates payable to the Company under current or completed Contracts with any Person, and no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale or provision of products or services by the Company have been entered into in the Ordinary Course of Business ofand have been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of the Assets owned or used by, an Acquired Company; and any Legal Requirement.
(bg) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired The Company is bound not restricted by any Contract that purports from marketing any product of the Company in any geographical territory in the world.
(h) Except as disclosed in Part 3.17(h) of the Disclosure Letter, neither the Company nor any Seller is party to limit any distributor agreement or any marketing arrangement with Dematex, Inc., IMTEX, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or any of their Affiliates; PROVIDED, HOWEVER, the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating Sellers shall provide full indemnity to the Business Buyer for any claim and related costs of defense related to any relationship or purported relationship between the Acquired Company, or (ii) assign to an Acquired Company or to any other Person Seller and Dematex, Inc., IMTEX, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or any rights to any invention, improvement, or discovery in connection with the Businessof their Affiliates.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) Part 4.17(a) of the Primal Disclosure Letter contains a complete and accurate list, and Primal has delivered to ▇▇▇▇▇ true and complete copies, of:
(i) each licensing agreement or other Applicable Contract with respect to the Software (collectively, the "Software Licenses");
(ii) each Applicable Contract with respect to the providing of consulting services by one or more of the Acquired Companies or any Contract for of their employees or agents (collectively, the purchase or sale of Real Property; "Consulting Contracts");
(biii) any each Applicable Contract (or group of related or similar other than the Software Licenses and the Consulting Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market of an amount or value in excess of $50,000 10,000;
(iv) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person or more Acquired Companies of an amount or value in excess of $10,000;
(except (iv) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods one or materials by the more Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Companies in excess of $50,000 10,000;
(vi) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(vii) each licensing agreement or other Applicable Contract entered into in (other than the Ordinary Course of Business for the purchase of servicesSoftware Licenses) with respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non- disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fviii) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gix) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hx) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate of an Acquired Company or limit the freedom of any Acquired Company or any Affiliate of an Acquired Company to engage in any line of business or to compete with any Person; ;
(ixi) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods goods;
(xii) each power of attorney that is currently effective and outstanding;
(yxiii) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) provides for an express undertaking by any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; to be responsible for consequential damages;
(kxiv) any each Applicable Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 10,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xv) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the aggregate)Ordinary Course of Business; and
(nxvi) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements foregoing. Part 4.17(a) of the Primal Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 4.17(b) of the Primal Disclosure Letter:
(i) no stockholder of Primal (and no Related Person of any stockholder of Primal) has or may acquire any rights under, and no stockholder of Primal has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Assetsassets owned or used by, any Acquired Company; and
(sii) any Contract that involves an account receivable or note receivable to the Knowledge of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeno officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies (c) Except as set forth in Part 4.17(c) of the Contracts listed Primal Disclosure Letter, each Contract identified or required to be identified in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on Part 4.17(a) of the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, Primal Disclosure Letter is in default under any Contract. Each Contract
(i) constitutes a valid full force and binding obligation of the Acquired Company party thereto effect and, to the Knowledge of SellerPrimal, is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 4.17(d) of the Primal Disclosure Letter:
(i) each Acquired Company is, and at all times since June 17, 1996, has been, in full compliance with all applicable terms and requirements of each other party thereto; and Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of SellerPrimal, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, no notice toand at all times since June 17, filing or registration with1996, or Consent ofhas been, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of SellerPrimal, fact no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since June 17, 1996, any written notice or other written communication regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (ae) neither Seller nor There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any Related material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person of Seller (excluding any and, to the Knowledge of the Acquired Companies, no such Person has made written demand for such renegotiation.
(f) has any rights or obligations under any Contract with an Acquired Company or that relates The Contracts relating to the Business ofsale, design, manufacture, or any provision of products or services by the Assets owned or used byAcquired Companies have been entered into in the Ordinary Course of Business and, an Acquired Company; and (b) to the Knowledge of SellerPrimal, no officer, director, agenthave been entered into without the commission of any act alone or in concert with any other Person, or employee any consideration having been paid or promised, that is or would be in violation of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Avery Communications Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.17(a) contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Acquired Company taken together or more to the Acquired Companies with a fair market Company taken together of an amount or value in excess of $50,000 to any one Person 5,000;
(except (iii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value taken together in excess of $50,000 5,000;
(iii) each lease, rental or occupancy agreement, license, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases having a value per item or aggregate payments of less than $5,000 and with terms of less than one year);
(iv) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fv) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees relating to wages, hours, and other conditions of employment;
(gvi) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any the Acquired Company with any other Person; ;
(hvii) any each Applicable Contract containing covenants that in any way purport to restrict the Acquired Company's business activity of any Acquired Company or limit the freedom of any the Acquired Company to engage in any line of business or to compete with any Person; ;
(iviii) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each power of attorney that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) any Contract which provides for, or relates to, for an express undertaking by the incurrence by an Acquired Company of Indebtedness; to be responsible for consequential damages;
(kxi) any each Applicable Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 5,000;
(it being warranted that xii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Acquired Company other than in the aggregate)Ordinary Course of Business; and
(nxiii) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements foregoing.
(a) sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Company under the Contracts, and the Acquired Company's offices where details relating to the Contracts are located.
(b) Except as set forth in Schedule 3.17(b) or as is set forth in the Contemplated Transactions:
(i) no Seller nor any Related Person of Seller has or may acquire any rights under, and no Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Assets; (s) any Contract that involves an account receivable assets owned or note receivable of more than $100,000; and (t) any other Contract which is material to used by, the Acquired Companies, as a whole.Company; and
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, (ii) to the Knowledge of SellerSellers and the Acquired Company, any other party theretono officer, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation director, agent, employee, consultant, or contractor of the Acquired Company party thereto andis bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the Knowledge business of Sellerthe Acquired Company, of or (B) assign to the Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Schedule 3.17(c), each other party thereto; and (iiContract identified or required to be identified in Schedule 3.17(a) is in full force and effect as and is valid and enforceable in accordance with its terms and that no arrangements exist which are not reflected on the Financial Statements and the Interim Financial Statements, and that no default (with respect to the Acquired Company party theretodefault of third parties, and, only to the Knowledge of SellerSellers) exists under any such agreements.
(d) Except as set forth in Schedule 3.17(d):
(i) Acquired Company is, as and at all times since January 1, 1995 has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability in excess of $5,000 or by which such Acquired Company or any of the assets owned or used by such Acquired Company with a value in excess of $5,000 is or was bound;
(ii) to Sellers' Knowledge, each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person (other than a Seller) that has or had any obligation or liability under any Contract under which the Acquired Company has or had any rights and involving any obligation or liability in excess of $5,000 is, no notice toand at all times since January 1, filing or registration with1995 has been, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any the Acquired Company or other Person (with respect to breaches or violations by third parties, only to the Knowledge of Sellers) the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor any Related Person of Seller (excluding any of the Acquired CompaniesCompany has not given to or received from any other Person, at any time since January 1, 1995, any notice or other communication (whether oral or written) has regarding any rights actual, alleged, possible, or obligations under any Contract with an Acquired Company potential violation or that relates to the Business breach of, or default under, any Contract involving any obligation or liability in excess of the Assets owned $5,000;
(e) There are no renegotiations of, attempts to renegotiate, or used by, an Acquired Company; and (b) outstanding rights to renegotiate any material amounts paid or payable to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by under current or completed Contracts with any Contract that purports to limit the ability of Person and no such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice The Contracts relating to the Business sale, design, manufacture, or provision of products or services by the Acquired CompanyCompany have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Integrated Orthopedics Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Section 3.16(a) of the Disclosure Schedule contains a complete and accurate list, and the Company has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one to the Business of an amount or more Acquired Companies with a fair market value in excess of $50,000 to any one Person 25,000;
(except (iii) any each Applicable Contract that was not entered into in the Ordinary Course ordinary course of Business for the sale of goods business and that involves expenditures or materials receipts by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Business in excess of $50,000 25,000;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000 and with terms of less than one year);
(iv) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fv) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvi) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company the Business with any other Person; ;
(hvii) any each Applicable Contract containing covenants that in any way purport to restrict the its (or any of its Affiliates’) business activity of any Acquired Company or limit the its (or any of its Affiliates’) freedom of any Acquired Company to engage in any line of business or to compete with any Person; ;
(iviii) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods and goods;
(yix) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 25,000;
(it being warranted that x) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Business other than in the aggregate)ordinary course of business; and
(nxi) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any foregoing.
(b) To the Knowledge of the Assets; (s) Company, no officer, agent, employee, consultant, or contractor of the Company is bound by any Contract that involves an account receivable purports to limit the ability of such officer, agent, employee, consultant, or note receivable of more than $100,000; and contractor to (tA) engage in or continue any conduct, activity, or practice relating to the Business, or (B) assign to the Company or to any other Contract which is material Person any rights to the Acquired Companiesany invention, as a wholeimprovement, or discovery.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies (c) Each Contract of the Contracts listed Company, including those identified or required to be identified in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(iSection 3.16(a) constitutes a valid and binding obligation of the Acquired Company party thereto andDisclosure Schedule, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect and is valid and enforceable against the Company in accordance with its terms.
(d) Except as to set forth in Section 3.16(d) of the Acquired Disclosure Schedule:
(i) the Company party theretois, andand at all times has been, in compliance in all material respects with all applicable terms and requirements of each Contract under which it has or had any obligation or liability or by which it or any of the assets owned or used by it is or was bound;
(ii) to the Knowledge of Sellerthe Company, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract relating to the Business under which and the Company has or had any rights is, no notice toand at all times has been, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue compliance in full force all material respects with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired the Company or or, to the Knowledge of the Company, other Person Person, the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) Company has any rights not given to or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to received from any other Person any rights to written notice regarding any inventionactual, improvementalleged, possible, or discovery in connection with the Businesspotential violation or breach of, or default under, any Contract.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 5.15 contains a complete and accurate list, and the Company has made available to Buyer true and complete copies, of:
(i) each Applicable Contract that involves or will involve performance of services or delivery of goods by the Company of an amount or value, individually or, for the purchase or sale of Real Property; (b) any Contract (or group a series of related or similar Applicable Contracts, in the aggregate, in excess of $25,000;
(ii) each Applicable Contract that involves the future performance of services or delivery of goods or materials by one to the Company during any twelve (12) month period of an amount or more Acquired Companies with value, individually or, for a fair market value series of related Applicable Contracts, in the aggregate, in excess of $50,000 to any one Person 25,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for Business;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement of the sale of goods or materials by Company and each other Applicable Contract, in each case affecting the Acquired Company at market prices that is represented solely by a customer purchase orderownership, an acknowledgment from the Acquired Companytitle to, use of, occupancy, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment any leasehold or other expense interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000 and with terms of less than one year);
(v) each licensing agreement of the Company and each other Applicable Contract, in each case with Intellectual Property, including agreements with current or former Employees, consultants or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement of the Company and each other Applicable Contract, in each case to or with any labor union or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements Employee representative of a group of Employees and each other written employment or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 (except any Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other consulting agreement with any labor union; Employees or consultants;
(gvii) any each joint venture, venture or partnership or other Contract of the Company (however named) and each other Applicable Contract, in each case involving a sharing of profits, losses, costs or liabilities Liabilities by any Acquired the Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Acquired Company of its Affiliates or limit the freedom of the Company or any Acquired Company of its Affiliates to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney granted by or to the Company that is will be after the Closing, effective and outstanding;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by the Company to be responsible for consequential damages;
(jxii) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 25,000;
(it being warranted that xiii) each Applicable Contract in effect presently or during the commitments for all undisclosed Contracts for such projects do not exceed last twelve (12) months between the Company and its former or current Members, directors, officers and Employees;
(xiv) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance in excess of $500,000 25,000 extended by the Company, other than in the aggregate); Ordinary Course of Business;
(nxv) each severance agreement or similar arrangement that provides any sale and leaseback arrangements and installment purchase arrangements; obligations (oabsolute or contingent) any management for the Company or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially Person to make any payment to any officer, director, or Employee or shareholder of the Company after termination; and
(xvi) each amendment, supplement, and adversely affects the ownership modification (whether oral or leasing written) in respect of any of the Assets foregoing.
(b) Except as set forth in Schedule 5.15, no Member (or any maintenance relation thereof) has or service agreements relating may acquire any rights under, and no Member has or may become subject to, any obligation or liability under any Contract that relates to the business of, or any of the Assets; assets owned or used by, the Company;
(sc) any Except as set forth in Schedule 5.15, each Contract that involves an account receivable identified or note receivable of more than $100,000; and (t) any other Contract which is material required to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed be identified in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, Schedule 5.15 is in default under any Contract. Each Contract
(i) constitutes a valid full force and effect and is legal, valid, binding obligation of and enforceable in accordance with its terms against the Acquired Company party thereto and, to the Knowledge of Sellerthe Company, against all of the parties thereto.
(d) Except as set forth in Schedule 5.15:
(i) the Company is, and at all times since the Company’s inception, has been, in compliance with all material terms and requirements of each other party thereto; and Contract identified or required to be identified on Schedule 5.15;
(ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Sellerthe Company, as to each other party thereto. Except as separately Person that has or had any obligation or Liability under any Applicable Contract identified or required to be identified on SCHEDULE 5.15.2Schedule 5.15 is, no notice toand at all times since the Company’s inception has been, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all material terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsApplicable Contract;
(iii) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Sellerthe Company, fact no event has occurred or circumstance exists that (with or without notice or lapse of time) may in any material respect contravene, conflict with, or result in a violation or breach of of, or give any Acquired the Company or any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.Contract identified or required to be identified on Schedule 5.15; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor the Company has not given to or received from any Related Person of Seller (excluding other Person, at any of time since the Acquired Companies) has Company’s inception, any rights or obligations under any Contract with an Acquired Company or that relates to the Business ofwritten or, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Sellerthe Company, no officer, director, agentother notice or communication regarding any actual, or employee of an Acquired Company is bound by alleged material violation or breach of, or default under, any Contract that purports identified or required to limit be identified in Schedule 5.15.
(e) There are no pending significant renegotiations of, attempts to renegotiate, and there are no outstanding rights to renegotiate any material amounts paid or payable to the ability of Company under current or completed Contracts with any Person and no such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice The Contracts relating to the provision of products or services by the Company have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act by the Acquired CompanyCompany or in concert with any other Person, or (ii) assign to an Acquired any consideration having been paid or promised, that is or would be in violation by the Company or to of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 to any one Person 10,000;
(except (iii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods and that involves expenditures or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 receipts of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 5,000;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of one year or less);
(iv) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fv) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvi) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hvii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or limit the freedom of any Acquired the Company to engage in any line of business or to compete with any Person; ;
(iviii) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods and goods;
(yix) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by the Company to be responsible for consequential damages;
(jx) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 10,000;
(it being warranted that xi) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate)Ordinary Course of Business; and
(nxii) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements foregoing. Part 3.17(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Company under the Contracts, and the Company's office where details relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeContracts are located.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(ib) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Business.Part 3.17
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 3.19(a) contains an accurate and complete list, and Seller has delivered to Buyer accurate and complete copies, of:
(i) each Seller Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one Seller of an amount or more Acquired Companies with a fair market value in excess of $50,000 15,000;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to any one Person Seller of an amount or value in excess $15,000;
(except (iiii) any each Seller Contract that was not entered into in the Ordinary Course ordinary course of Business for the sale business and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Seller in excess of $50,000 15,000;
(iv) each Seller Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $15,000 and with a term of less than one year);
(v) each Seller Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company Seller with any other Person; ;
(hvii) any each Seller Contract containing covenants that in any way purport to restrict the Seller’s business activity of any Acquired Company or limit the freedom of any Acquired Company Seller to engage in any line of business or to compete with any Person; ;
(iviii) any each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of Seller that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts each Seller Contract entered into other than in the Ordinary Course ordinary course of Business with employees and other sales personnel paying commissions business that contains or bonuses; provides for an express undertaking by Seller to be responsible for consequential damages;
(jxi) any each Seller Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 15,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by Seller other than in the aggregate)ordinary course of business; and
(nxiii) any sale each amendment, supplement and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing. Part 3.19(a) sets forth reasonably complete details concerning such Contracts, including the date, parties to the Contracts, and such Contracts have been made available to Buyer.
(b) Neither Shareholder has or may acquire any maintenance rights under, and neither Shareholder has or service agreements relating may become subject to any obligation or liability under, any Contract that relates to the business of Seller or any of the Assets; .
(sc) any Except as set forth in Part 3.19(a):
(i) each Contract that involves an account receivable identified or note receivable required to be identified in Part 3.19(a) and which is to be assigned to or assumed by Buyer under this Agreement is in full force and effect and is valid and enforceable in accordance with its terms;
(ii) each Contract identified or required to be identified in Part 3.19(a) and which is being assigned to or assumed by Buyer is assignable by Seller to Buyer without the consent of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.Person; and
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, (iii) to the Knowledge of Seller, any other party theretono Contract identified or required to be identified in Part 3.19(a) and which is to be assigned to or assumed by Buyer under this Agreement will upon completion or performance thereof have a material adverse affect on the business, is assets or condition of Seller or the business to be conducted by Buyer with the Assets.
(d) Except as set forth in default under any Contract. Each ContractPart 3.19(a):
(i) constitutes a valid Seller is, and binding obligation at all times since December 31, 2018, has been, in material compliance with all applicable terms and requirements of the Acquired Company party thereto and, each Seller Contract which is being assumed by Buyer;
(ii) to the Knowledge of the Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, with or result in a violation or breach of of, or give any Acquired Company Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Applicable Contract.Seller Contract that is being assigned to or assumed by Buyer;
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (biii) to the Knowledge of the Seller, no officer, director, agent, event has occurred or employee circumstance exists under or by virtue of an Acquired Company is bound by any Contract that purports (with or without notice or lapse of time) would cause the creation of any Encumbrance (other than Permitted Encumbrances) affecting any of the Assets; and
(iv) Seller has not given to limit the ability of such officeror received from any other Person, directorat any time since December 31, agent or employee2018, any written or, to (i) engage in the Knowledge of the Seller, oral notice or continue other communication regarding any conductactual, activityalleged, possible or potential violation or beach of, or practice default under, any Contract which is being assigned to or assumed by Buyer.
(e) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Seller under current or completed Contracts with any Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation.
(f) Each Contract relating to the Business sale, design, manufacture or provision of products or services by Seller has been entered into in the Acquired Companyordinary course of business of Seller and has been entered into without the commission of any act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except (a) Part 3.19(a) of the Disclosure Schedule contains a complete and accurate list as set forth in SCHEDULE 5.15.1 or as disclosed in of the date of this Agreement, no Acquired Company is a party and Sellers have made available to or bound by: Buyer true and complete copies, of:
(ai) any each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 25,000.00 (excluding the sale or rental of Rental Equipment in the Ordinary Course of Business);
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person the Company of an amount or value in excess of $25,000.00;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods and that involves expenditures or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 receipts of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 25,000.00;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000.00);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with 29 current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Acquired Affiliate of the Company or limit the freedom of the Company or any Acquired Affiliate of the Company to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by the Company to be responsible for consequential damages;
(jxii) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 25,000.00;
(it being warranted that xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements foregoing.
(a) of the Disclosure Schedule sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Company under the Contracts, and the Company's office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.19(b) of the Disclosure Schedule or as contemplated by this Agreement:
(i) neither Sellers nor any Related Person of Sellers has or may acquire any 30 rights under, and neither Sellers nor any Related Person of Sellers has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Assetsassets owned or used by, the Company; and
(sii) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of SellerSell▇▇▇, ▇▇▇, ▇▇d the Company, no officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of the Company, or (B) assign to the Company or to any other party theretoPerson any rights to any invention, is in default under any Contract. Each Contractimprovement, or discovery.
(ic) constitutes a valid and binding obligation Except as set forth in Part 3.19(c) of the Acquired Company party thereto andDisclosure Schedule, each Contract identified or required to be identified in Part 3.19(a) of the Knowledge of Seller, of each other party thereto; and (ii) Disclosure Schedule is in full force and effect as with respect to the Acquired Company party thereto, and, in all material respects; each material Contract of the Company is valid and enforceable in accordance with its material terms; and to the Knowledge of SellerSell▇▇▇, as ▇▇▇, ▇▇d the Company, each Contract identified or required to each other party thereto. be identified in Part 3.19(a) of the Disclosure Schedule is valid and enforceable in accordance with its material terms.
(d) Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in Part 3.19(d) of the Disclosure Schedule:
(i) the Company is in full force compliance with all applicable material terms and effect (without breach requirements of each Contract under which the Company has or had any obligation or liability or by which the Company or any of the assets owned or used by the Acquired Companies of, Company is or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactionswas bound;
(ii) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of SellerSell▇▇▇, fact ▇▇▇ ▇▇▇ the Company, each other Person that has or had any obligation or liability under any Contract required to be disclosed in Part 3.19 of the Disclosure Schedule under which the Company has or had any rights is, and at all times has been, in full compliance with all applicable material terms and requirements of such Contract;
(iii) no material event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give the Company, or to the Knowledge of Sell▇▇▇, ▇▇▇ ▇▇▇ the Company, any Acquired Company or other Person Person, the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.
5.15.3. Except as set forth Contract required to be disclosed in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any Part 3.19 of the Acquired CompaniesDisclosure Schedule; and
(iv) the Company has not given to or received from any rights other Person, at any time any notice or obligations under other written communication regarding any Contract with an Acquired Company actual, alleged, possible, or that relates to the Business potential violation or breach of, or default under, any Contract required to be disclosed in Part 3.19 of the Assets owned Disclosure Schedule. 31
(e) There are no renegotiations of, attempts to renegotiate, or used byoutstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts required to be disclosed in Part 3.19 of the Disclosure Schedule with any Person and, an Acquired Company; and (b) to the Knowledge of SellerSellers and the Company, no officer, director, agent, or employee such Person has made written demand for such renegotiation.
(f) The Contracts required to be disclosed in Part 3.19 of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice Disclosure Schedule relating to the Business of the Acquired Companysale, design, manufacture, or (ii) assign to an Acquired provision of products or services by the Company have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or to in concert with any other Person any rights to any invention, improvementPerson, or discovery any consideration having been paid or promised, that is or would be in connection with the Businessviolation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Section 4.12(a) of the Disclosure Schedule contains a complete and accurate list, and the Company shall make available or deliver to Purchaser, true and complete copies of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market to the Company of an amount or value in excess of $50,000 100,000, excluding all Applicable Contracts for the sale of the Company's lots (provided that the Company has delivered or made available or will make available to Purchaser all Applicable Contracts for the sale of any one Person of the Company's lots);
(except (iii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 ordinary course of the Uniform Commercial Code); (d) any Contract real estate development business and that requires involves expenditures or commits any Acquired receipts of the Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 100,000, or provides for an undertaking by the Company to be responsible for consequential damages;
(iii) each Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any Contract entered into those contracts disclosed in the Ordinary Course title report produced pursuant to Section 4.5 and personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of Business for less than $100,000), including unrecorded boundary agreement or unrecorded leases, affecting the purchase of servicesrights with other property owners to sell, goodslease, materials acquire or inventory exchange any real or personal property;
(iv) each Applicable Contract with respect to material patents, trademarks and copyrights owned or licensed by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, ;
(v) each Applicable Contract to or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership union or other employee representative of a group of existing employees;
(vi) each Applicable Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired the Company with any other Person; ;
(hvii) each agreement or plan, including, without limitation, any Contract containing covenants that in stock option plan, stock appreciation rights plan or stock purchase plan, any way purport to restrict of the business activity benefits of any Acquired Company which will be increased, or limit the freedom vesting of any Acquired Company to engage in any line benefits of business or to compete with any Person; (i) any Contract providing for payments to which will be accelerated, by the occurrence of the Contemplated Transactions or by any Person based on sales, purchases or profits, other than (x) direct payments for goods and (y) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices this Agreement or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing value of any of the Assets benefits of which will be calculated on the basis of any of the Contemplated Transactions;
(viii) each fidelity or any maintenance surety bond or service agreements completion bond relating to the Company;
(ix) each mortgage, indenture, guarantee, bond, loan or credit agreement, security agreement or other agreement or instrument relating to the borrowing of money or extension of credit relating to the Company;
(x) each employment or consulting agreement, Contract or commitment with an employee or individual consultant or salesperson, or consulting or sales agreement, Contract, or commitment with a firm or other organization; and
(xi) each amendment, supplement, and modification (whether oral or written) with respect to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeforegoing.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to (b) To the Knowledge of Sellerthe Company, any other party theretoexcept as set forth in Section 4.12(c) of the Disclosure Schedule, each Contract identified or required to be identified in Section 4.12(a) of the Disclosure Schedule is in default under any Contract. Each Contractfull force and effect and is valid and enforceable in accordance with its terms.
(ic) constitutes a valid and binding obligation To the Knowledge of the Acquired Company, except as set forth in Section 4.12(c) of the Disclosure Schedule, there are no outstanding rights to renegotiate any material amounts paid or payable to or by the Company party thereto under current or completed Contracts with any Person and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2Company, no notice to, filing or registration with, or Consent of, any such Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify has made written demand for such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contractrenegotiations.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Business.
Appears in 1 contract
Sources: Stock Purchase Agreement (United Park City Mines Co)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.17(a) contains a complete and accurate list, and Seller has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies or otherwise in connection with a fair market the Business of an amount or value in excess of $50,000 100,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person or more Acquired Companies or otherwise in connection with the Business of an amount or value in excess of $100,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for and that involves expenditures or receipts of one or more Acquired Companies or otherwise in connection with the sale of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Business in excess of $50,000 25,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights or other intellectual property, including agreements with current or former employees which are still in effect, consultants or contractors regarding the appropriation or the non-disclosure of any Contract of the Intellectual Property Assets other than those agreements with employees entered into in the Ordinary Course normal course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); business;
(evi) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any material way purport to restrict the business activity of the Business or any Acquired Company or any Related Person of an Acquired Company or limit the freedom of the Business or any Acquired Company or any Related Person of an Acquired Company in any material way to engage in any of its line of business or to compete with any Person; Person in its lines of business;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding which could effect in a material way the Business or the Acquired Companies;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) provides for an express undertaking by any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; to be responsible for indirect, consequential or punitive damages;
(kxii) any each Applicable Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 25,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xiii) each written warranty, guaranty and other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each material amendment, supplement and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating foregoing. Schedule 3.17(a) sets forth sufficient details concerning such Contracts to any of identify the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; Contracts, and (t) any other Contract which is material to the Acquired Companies, as a whole’ office where details relating to the Contracts are located.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed (b) Except as set forth in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractSchedule 3.17(b):
(i) constitutes a valid Neither Seller nor any Related Person of Seller has or may acquire any rights under, and binding Seller has not become subject to any obligation or liability under, any material Contract that relates to the business of, or any of the material assets owned or used by, any Acquired Company; and
(ii) To Seller’s Knowledge, no officer or employee of any Acquired Company party thereto andis bound by any Contract that purports to limit the ability of such officer or employee to (A) engage in or continue any conduct, activity or practice relating to the Knowledge business of Sellerany Acquired Company, or (B) assign to any Acquired Company any material rights to any invention, improvement or discovery made in the course of said officer’s or employee’s employment.
(c) Except as set forth in Schedule 3.17(c), each other party thereto; and (iiContract identified or required to be identified in Schedule 3.17(a) is in full force and effect and is valid and enforceable in accordance with its terms in all material respects.
(d) Except as set forth in Schedule 3.17(d)
(i) to the Seller’s Knowledge, each Acquired Company party theretois, andand at all times has been, in compliance in all material respects with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company or otherwise in connection with the Business is or was bound;
(ii) to the Knowledge of Seller’s Knowledge, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times has been, in compliance in all material respects with all applicable terms and requirements of such Contract;
(iii) to Seller’s Knowledge, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, with or result in a material violation or breach of of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company has given to or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to received from any other Person any rights to notice or other communication (whether oral or written) regarding any inventionactual, improvementalleged potential material violation or breach of, or discovery default under, any Contract.
(e) There are no renegotiations of any material amounts paid or payable to Seller or any Acquired Company under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies or otherwise in connection with the BusinessBusiness have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in material violation of any Legal Requirement.
Appears in 1 contract
Sources: Share Purchase Agreement (Lennox International Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Acquired Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 to any one Person 10,000.00;
(except (iii) any each Applicable Contract entered into in the Ordinary Course that involves performance of Business for the sale services or delivery of goods or materials by to the Acquired Company at market prices that is represented solely by a customer purchase order, of an acknowledgment from the Acquired Company, amount or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 10,000.00;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $100,000.00 and with terms of less than one year);
(iv) each other Applicable Contract entered into in the Ordinary Course of Business for the purchase of services(other than standard software licenses) with respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fv) any collective bargaining or other agreement with any labor union; (g) any each joint venture, partnership or partnership, and other Applicable Contract (however named, but excluding employee compensation arrangements) involving a sharing of profits, losses, costs costs, or liabilities by any the Acquired Company with any other Person; ;
(hvi) any each Applicable Contract (other than vendor or distribution agreements) containing covenants that in any way purport to restrict the business activity of any the Acquired Company or limit the freedom of any the Acquired Company to engage in any line of business or to compete with any Person; ;
(ivii) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods and (y) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contractgoods;
(iviii) constitutes a valid each power of attorney that is currently effective and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Business.outstanding;
Appears in 1 contract
Sources: Stock Purchase Agreement (Origin Investment Group Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Contract for the purchase or sale of Real Property; Disclosure Schedule contains a complete and accurate list, and Valley has delivered to the Buyer true and complete copies, of:
(bi) any Contract (or group of related or similar Contracts) each Applicable Contract, if any, that involves the future performance of services or delivery of goods or materials by one Valley or more Acquired Companies with a fair market any of its Subsidiaries of an amount or value in excess of $50,000 25,000
(ii) each Applicable Contract, if any, that involves performance of services or delivery of goods or materials to Valley or any one Person of its Subsidiaries of an amount or value in excess of $25,000
(except (iiii) any Contract each Applicable Contract, if any, that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods Valley or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value its Subsidiaries in excess of $50,000 25,000
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract, if any, affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any Contract entered into in the Ordinary Course personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of Business for the purchase less than $25,000 and with terms of servicesless than one year);
(v) each licensing agreement or other Applicable Contract, goodsif any, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase orderwith respect to patents, an acknowledgement from the Acquired Companytrademarks, copyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Applicable Contract, if any, to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) ), if any, involving a sharing of profits, losses, costs costs, or liabilities by Valley or any Acquired Company of its Subsidiaries with any other Person; ;
(hviii) any Contract each Applicable Contract, if any, containing covenants that in any way purport to restrict the business activity of Valley or any Acquired Company of its Subsidiaries or limit the freedom of any Acquired Company of them to engage in any line of business or to compete with any Person; ;
(iix) any Contract each Applicable Contract, if any, providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney, if any, that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract, if any, entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by Valley or any of its Subsidiaries to be responsible for consequential damages;
(jxii) any Contract which provides foreach Applicable Contract, or relates toif any, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 10,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xiii) each written warranty, guaranty, and or other similar undertaking, if any, with respect to contractual performance extended by Valley or any of its Subsidiaries other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing. The Disclosure Schedule sets forth the parties to the Contracts, the amount of the remaining commitment of Valley or any maintenance or service agreements its Subsidiary under the Contracts and the office where details relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeContracts are located.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of (b) Except as set forth in the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractDisclosure Schedule:
(i) constitutes a valid no Shareholder (and binding no Related Person of any Shareholder) has or may acquire any rights under, and no Shareholder has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Acquired Company party thereto assets owned or used by, Valley or any Subsidiary; and, to the Knowledge of Seller, of each other party thereto; and
(ii) no officer, director, agent, employee, consultant, or contractor of Valley or any of its Subsidiaries is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of Valley or any Subsidiary, or (B) assign to Valley or any Subsidiary or to any other Person any rights to any invention, improvement, or discovery.
(c) each Contract identified or required to be identified in the Disclosure Schedule is in full force and effect and is valid and enforceable in accordance with its terms, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and similar laws of general application affecting the rights of creditors and (ii) applicable laws and regulations and principles of equity which may restrict the enforcement of certain remedies or the availability of certain equitable remedies.
(d) Except as to set forth in the Acquired Company party thereto, and, Disclosure Schedule:
(i) to the Knowledge of Sellerthe Shareholders, as to Valley and each other party thereto. Except as separately identified on SCHEDULE 5.15.2of its Subsidiaries is, no notice toand at all times since its formation has been, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach requirements of each Contract under which Valley or any such Subsidiary has or had any obligation or liability or by the Acquired Companies of, which Valley or giving such Subsidiary or any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation assets owned or used by any of the Contemplated Transactionsthem is or was bound, except where such failure to comply would not have a material adverse effect on it;
(ii) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Sellerthe Shareholders, fact each other Person that has or had any obligation or liability under any Contract under which Valley or any of its Subsidiaries has or had any rights is, and at all times since its formation has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of the Shareholders, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give Valley or any Acquired Company of its Subsidiaries or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (biv) to the Knowledge of Sellerthe Shareholders, no officerneither Valley nor any of its Subsidiaries has given to or received from any other Person, directorat any time since its formation, agentany notice or other communication (whether oral or written) regarding any actual, alleged, possible, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent potential material violation or employee, to (i) engage in or continue any conduct, activitybreach of, or practice default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to Valley or any of its Subsidiaries under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the Business of the Acquired Companysale, design, manufacture, or (ii) assign to an Acquired Company provision of products or to services by Valley or any of its Subsidiaries have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person any rights to any invention, improvementPerson, or discovery any consideration having been paid or promised, that is or would be in connection with the Businessviolation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Contract for Seller has delivered to Buyers true and complete copies of all of the purchase written Applicable Contracts. Part 3.15(a) of the Disclosure Schedule contains a complete and accurate description of each of the following Applicable Contracts, whether oral or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market value in excess of $50,000 to any one Person (except written: (i) any Contract entered into each agreement that involves aggregate future payments by Seller of more than $10,000; (ii) each distributorship, sales agency, franchise, joint venture or partnership agreement; (iii) each agreement not made in the Ordinary Course of Business for which is to be performed after the sale of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company)Closing; (civ) any Contract that is each outstanding commitment to make a capital expenditure, capital addition or capital improvement involving an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value amount in excess of $50,000 5,000; (except any Contract entered into v) each real or personal property lease requiring payments of more than $10,000 in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction)aggregate; (evi) any Guaranty each agreement relating to the loan of money or similar undertaking availability of credit to or from Seller; (vii) each agreement limiting the obligations freedom of customers, suppliers, officers, directors, employees, Seller, Affiliates Seller to compete in the line of business of Seller or otherswith any Person engaged in a business similar to Seller's; (fviii) each Applicable Contract between Seller and any present or former employee; (ix) each license agreement relating to patents, trademarks, know-how or other intellectual property included in the Assets, whether as licensee or licensor; (x) each collective bargaining agreement or other agreement contract or commitment to or with any labor unionunion or other group of employees representing the employees; (gxi) each mortgage, pledge, security, title retention, or similar agreement encumbering any joint venture, partnership or other Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company with any other Personthe Assets for more than $10,000; (hxii) any Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or limit the freedom of any Acquired Company to engage in any line of business or to compete with any Person; (i) any Contract each agreement providing for payments to or by any Person based on sales, purchases purchases, revenues, profits or profitsassets; (xiii) each guaranty or similar undertaking by Seller with respect to the obligations of any other Person for more than $10,000; (xiv) each agreement relating to the acquisition or disposition of significant assets, other than (x) direct payments for goods businesses or companies within the past five years; and (yxv) Contracts entered into in the Ordinary Course of Business with employees and each other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable requiring payments of more than $100,000; and (t) any other Contract 10,000 in the aggregate which is material cannot be terminated by Seller within one year after the date hereof without penalty or under which the consequences of a default or termination would have a Material Adverse Effect. Exhibit D contains a complete list of Applicable Contracts that require a third party to the Acquired Companies, as a wholeconsent to their transfer to Buyers.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies (b) Except as set forth in Part 3.15(b) of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies norDisclosure Schedule, to the Knowledge of SellerSeller and Stockholder, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) Applicable Contract is in full force and effect and is valid and enforceable against Seller in accordance with its terms, subject to bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws relating to or affecting rights of creditors generally. Except as to set forth in Part 3.15(b) of the Acquired Company party theretoDisclosure Schedule: (i) Seller is, andand at all times has been, in compliance in all material respects with all applicable terms and requirements of each Applicable Contract; (ii) to the Knowledge of SellerSeller and Stockholder, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has any obligation or liability under any Applicable Contract is, and at all times has been, in compliance in all material respects with all applicable terms and requirements of such Applicable Contract and no such Person is insolvent or involved in bankruptcy, insolvency or other Proceedings to enforce creditors rights generally nor is any such Proceeding Threatened; and (iii) Seller has not given to or received from any other Person, at any time, any notice toor other communication (whether oral or written) regarding any actual, filing or registration withalleged, possible, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without potential violation or breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (ac) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business There are no renegotiations of, or any of the Assets owned or used by, an Acquired Company; and (b) attempts to the Knowledge of Seller, no officer, director, agentrenegotiate, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any outstanding rights to renegotiate any invention, improvement, material amounts paid or discovery in connection payable to Seller under Applicable Contracts with any Person having the Businesscontractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Contract for Schedule 3.16(a) contains a complete and accurate list, and the purchase or sale Companies have delivered to Purchaser true and complete copies, of Real Property; (b) any Contract (or group with respect to those items which are not in writing, a description of related or similar Contractsthe parties and material terms of each such item):
(i) each Applicable Contract that involves the future performance of services or delivery of goods or materials by one either of the Companies of an amount or more Acquired Companies with a fair market value in excess of $50,000 37,500;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person either of the Companies of an amount or value in excess of $37,500;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 either of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Companies in excess of $50,000 37,500;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $37,500 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations Intellectual Property Assets but excluding standard nondisclosure agreements and licenses of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; commercially available software;
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company either of the Companies with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of either of the Companies or any Acquired Company Shareholder or limit the freedom of either of the Companies or any Acquired Company Shareholder to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods and (y) Contracts other than commission arrangements with sales employees of either of the Companies entered into in the Ordinary Course of Business Business;
(x) each power of attorney that is currently effective and outstanding;
(xi) each Applicable Contract for capital expenditures;
(xii) each written warranty, guaranty, and or other similar undertaking with employees and respect to contractual performance extended by either of the Companies other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into than in the Ordinary Course of Business Business; and
(xiii) each amendment, supplement, and modification (whether oral or that was entered into at a price or prices materially written) in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing Contracts, identified or required to be identified ((i) - (xiii) are collectively, the "Material Contracts").
(b) Except as set forth in Schedule 3.16(b), no Shareholder (and no Related Person of any maintenance Shareholder) has or service agreements relating may acquire any rights under, or has or may become subject to any obligation or liability under, any Applicable Contract that relates to the Business of, or any of the Assets; (s) any Contract that involves an account receivable Assets owned or note receivable used by, either of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed (c) Except as set forth in SCHEDULES 5.11.2Schedule 3.16(c), 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) Material Contract is in full force and effect as to and is valid and enforceable against the Acquired Company party theretoCompanies, and, and to the Knowledge of Sellerthe Companies and the Shareholders, as to each against the other party parties thereto. , in accordance with its terms.
(d) Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect Schedule 3.16(d):
(without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result i) Each of the consummation Companies is, and at all times since the date of the Contemplated Transactions) following the consummation Audited Balance Sheet, has been, in compliance with all applicable terms and requirements of each Material Contract under which either of the Contemplated Transactions. No Companies has or had any obligation or liability;
(ii) no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give either of the Companies, or to the Knowledge of the Companies and the Shareholders, any Acquired Company or other Person Person, the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, reprice, or modify, any Applicable Material Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiii) neither Seller nor any Related Person of Seller (excluding any Neither of the Acquired Companies) Companies has given to or received from any rights or obligations under other Person, at any Contract with an Acquired Company or that relates to time since the Business of, or any date of the Assets owned or used byAudited Balance Sheet, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Business.written
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any The Seller Disclosure Letter contains an accurate and complete list, and Sellers have made available to Buyer accurate and complete copies, of:
(i) each Seller Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one any Seller, which relates solely to the Business or more Acquired Companies with a fair market the Assets of an amount or value in excess of $50,000 to any one Person 10,000;
(except (iii) any each Seller Contract entered into in the Ordinary Course that involves performance of Business for the sale services or delivery of goods or materials by to any Seller, which relates solely to the Acquired Company at market prices that is represented solely by a customer purchase order, Business or the Assets of an acknowledgment from the Acquired Company, amount or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 10,000;
(except any iii) each Seller Contract that was not entered into in the Ordinary Course ordinary course of business consistent with past practices and that relates solely to the Business for or the purchase Assets and involves expenditures or receipts of servicesany Seller in excess of $10,000;
(iv) each Seller Contract affecting the ownership of, goodsleasing of, materials title to, use of or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining leasehold or other agreement interest in any real or personal property relating solely to the Business (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with a term of less than one year);
(v) each Seller Contract relating solely to the Business with any labor union; (g) any joint venture, partnership union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company Seller with any other Person; ;
(hvii) any each Seller Contract containing covenants that in restrict any way purport to restrict the Seller’s business activity of any Acquired Company or limit the freedom of any Acquired Company such Seller to engage in any line of business or to compete with any Person; ;
(iviii) any each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney of any Seller relating solely to the Business or the Assets that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any each Seller Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures relating solely to the Business or the Assets in excess of $250,000 for a single project 10,000;
(it being warranted that xi) each Seller Contract relating solely to the commitments for all undisclosed Contracts for such projects do Business or the Assets not exceed $500,000 denominated in U.S. dollars;
(xii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by any Seller with respect to the Business other than in the aggregate)ordinary course of business consistent with past practices; and
(nxiii) any sale each amendment, supplement and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeforegoing.
5.15.2. (b) Except as set forth in the Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractDisclosure Letter:
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) Assigned Contract is in full force and effect and is valid and enforceable in accordance with its terms; and
(ii) each Assigned Contract is assignable by the applicable Seller to Buyer without the consent of any other Person.
(c) Except as set forth in the Seller Disclosure Letter:
(i) Each Seller is in material compliance with all applicable terms and requirements of each Assigned Contract;
(ii) to the Acquired Company party theretoSellers’ Knowledge, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Assigned Contract is in compliance with all applicable terms and requirements of such Assigned Contract;
(iii) to Sellers’ Knowledge, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may would reasonably be expected to contravene, conflict with, with or result in a violation or breach of Breach of, or give any Acquired Company Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Applicable Contract.Assigned Contract that is being assigned to or assumed by Buyer; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor to Sellers’ Knowledge, no event has occurred or circumstance exists under or by virtue of any Related Person Assigned Contract that (with or without notice or lapse of Seller time) would cause the creation of any Encumbrance (excluding other than a Permitted Encumbrance) affecting any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the BusinessAssets.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Contract for Schedule 3.17(a) contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract, other than purchase orders received in the purchase or sale Ordinary Course of Real Property; (b) any Contract (or group of related or similar Contracts) Business, that involves the future performance of services or delivery of goods or materials by one the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 10,000;
(ii) each Applicable Contract, other than purchase orders placed in the Ordinary Course of Business, that involves performance of services or delivery of goods or materials to any one Person the Company of an amount or value in excess of $10,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods and that involves expenditures or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 receipts of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 10,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Acquired Affiliate of the Company or limit the freedom of the Company or any Acquired Affiliate of the Company to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by the Company to be responsible for consequential damages;
(jxii) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 10,000;
(it being warranted that xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing.
(b) Except as set forth in Schedule 3.17(b):
(i) No Seller nor any Related Person of a Seller has or may acquire any maintenance rights under, and no Seller nor any Related Person of a Seller has or service agreements relating may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Assetsassets owned or used by, the Company; and
(sii) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of SellerSellers, no officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of the Company, or (B) assign to the Company or to any other party theretoPerson any rights to any invention, is in default under any Contract. Each Contractimprovement, or discovery.
(ic) constitutes a valid and binding obligation of the Acquired Company party thereto andExcept as set forth in Schedule 3.17(c), each Contract identified or required to the Knowledge of Seller, of each other party thereto; and (iibe identified in Schedule 3.17(a) is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Schedule 3.17(d):
(i) to the Acquired best of Sellers' Knowledge the Company party theretois, andand at all times has been, in full compliance with all applicable terms and requirements of each Contract under which the Company has or had any obligation or liability or by which the Company or any of the assets owned or used by the Company is or was bound;
(ii) to the best of Sellers' Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, no notice toand at all times has been, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result Contract;
(iii) to the best of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No Sellers' Knowledge no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor the Company has not given to or received from any Related other Person of Seller at any time notice or other communication (excluding whether oral or written) regarding any of the Acquired Companies) has any rights actual, alleged, possible, or obligations under any Contract with an Acquired Company potential violation or that relates to the Business breach of, or default under, any of Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Assets owned Company under current or used bycompleted Contracts with any Person and, an Acquired Company; and (b) to the Knowledge of SellerSellers and the Company, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice The Contracts relating to the Business of the Acquired Companysale, design, manufacture, or (ii) assign to an Acquired provision of products or services by the Company have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or to in concert with any other Person any rights to any invention, improvementPerson, or discovery any consideration having been paid or promised, that is or would be in connection with the Businessviolation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.17(a) contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Acquired Company taken together or more to the Acquired Companies with a fair market Company taken together of an amount or value in excess of Five Thousand Dollars ($50,000 to any one Person 5,000.00);
(except (iii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value taken together in excess of Five Thousand Dollars ($50,000 5,000.00);
(iii) each lease, rental or occupancy agreement, license, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases having a value per item or aggregate payments of less than Five Thousand Dollars ($5,000.00) and with terms of less than one year);
(iv) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fv) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees relating to wages, hours, and other conditions of employment;
(gvi) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any the Acquired Company with any other Person; ;
(hvii) any each Applicable Contract containing covenants that in any way purport to restrict the Acquired Company's business activity of any Acquired Company or limit the freedom of any the Acquired Company to engage in any line of business or to compete with any Person; ;
(iviii) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each power of attorney that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) any Contract which provides for, or relates to, for an express undertaking by the incurrence by an Acquired Company of Indebtedness; to be responsible for consequential damages;
(kxi) any each Applicable Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of Five Thousand Dollars ($250,000 for a single project 5,000.00);
(it being warranted that xii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Acquired Company other than in the aggregate)Ordinary Course of Business; and
(nxiii) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements foregoing.
(a) sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Company under the Contracts, and the Acquired Company's offices where details relating to the Contracts are located.
(b) Except as set forth in Schedule 3.17(b) or as is set forth in the Contemplated Transactions:
(i) no Seller nor any Related Person of Seller has or may acquire any rights under, and no Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Assets; (s) any Contract that involves an account receivable assets owned or note receivable of more than $100,000; and (t) any other Contract which is material to used by, the Acquired Companies, as a whole.Company; and
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, (ii) to the Knowledge of SellerSellers and the Acquired Company, no officer, director, agent, employee, consultant, or contractor of the Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of the Acquired Company, or (B) assign to the Acquired Company or to any other party theretoPerson any rights to any invention, is improvement, or discovery.
(c) Except as set forth in default under any Contract. Each ContractSchedule 3.17(c):
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, each Contract identified or required to the Knowledge of Seller, of each other party thereto; and (iibe identified in Schedule 3.17(a) is in full force and effect as and is valid and enforceable in accordance with its terms and that no arrangements exist which are not reflected on the Financial Statements and the Interim Financial Statements, and that no default exists under any such agreements; and
(ii) no Contract identified or required to be identified in Schedule 3.17(a) contains any term or requirement that is unreasonable, extraordinary, or not customary in the industries in which the Acquired Company party theretooperates.
(d) Except as set forth in Schedule 3.17(d):
(i) Acquired Company is, andand at all times since January 1, to 1995 has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability in excess of Five Thousand Dollars ($5,000.00) or by which such Acquired Company or any of the Knowledge assets owned or used by such Acquired Company with a value in excess of Seller, as to Five Thousand Dollars ($5,000.00) is or was bound;
(ii) each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract under which the Acquired Company has or had any rights and involving any obligation or liability in excess of Five Thousand Dollars ($5,000.00) is, no notice toand at all times since January 1, filing or registration with1995 has been, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any the Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor any Related Person of Seller (excluding any of the Acquired CompaniesCompany has not given to or received from any other Person, at any time since January 1, 1995, any notice or other communication (whether oral or written) has regarding any rights actual, alleged, possible, or obligations under any Contract with an Acquired Company potential violation or that relates to the Business breach of, or default under, any Contract involving any obligation or liability in excess of the Assets owned Five Thousand Dollars ($5,000.00);
(e) There are no renegotiations of, attempts to renegotiate, or used by, an Acquired Company; and (b) outstanding rights to renegotiate any material amounts paid or payable to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by under current or completed Contracts with any Contract that purports to limit the ability of Person and no such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice The Contracts relating to the Business sale, design, manufacture, or provision of products or services by the Acquired CompanyCompany have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Integrated Orthopedics Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.17(a) contains a complete and accurate list, and Cinemex has, in the case of written Contracts, made available to Buyers true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired of the Cinemex Companies with a fair market of an amount or value in excess of $50,000 1'000,000 pesos (excluding Contracts that are terminable by a Cinemex Company without penalty or cost to any one Person the Cinemex Companies in excess of $1'000,000 pesos);
(except (iii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods or materials by the Acquired Company at market prices and that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment involves expenditures or other expense liabilities and/or receipts of one or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 more of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Cinemex Companies in excess of $50,000 1'000,000 pesos (excluding Contracts that are terminable by a Cinemex Company without penalty or cost to the Cinemex Companies in excess of $1'000,000 pesos);
(iii) each loan agreement, promissory note, bond, letter of credit or other Applicable Contract evidencing Cinemex Indebtedness or any guarantee or similar obligation of any Cinemex Company with respect to indebtedness for borrowed money or any other similar payment obligation of any Person (other than any Cinemex Company);
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other similar interest in, any real or personal property (except any personal property lease having payments of less than $1'000,000 pesos and with a term of less than one (1) year);
(v) each material licensing agreement or other material Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any intellectual property other than (x) any licensing agreements or other Applicable Contracts entered into by any Cinemex Company in the Ordinary Course of Business for which primarily relate to the purchase exhibition by such Cinemex Company of services, goods, materials a particular motion picture or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement (y) "shrink-wrap" or other software licenses generally available from the Acquired Company, commercial venders or such other form documents as are ordinarily used to memorialize such a transaction); retailers which do not require ongoing royalty payments;
(evi) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other similar Applicable Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Cinemex Company with any other Person; , excluding Contracts entered into in the Ordinary Course of Business by a Cinemex Company;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Cinemex Company or any affiliate of any Cinemex Company or limit the freedom of any Acquired Cinemex Company or any affiliate of any Cinemex Company to engage in any line of business or to compete with any Person; Person or in any territory;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods and (y) goods, excluding Contracts entered into in the Ordinary Course of Business with employees by a Cinemex Company;
(x) other than those held by Messrs. Davila, Fastlicht and other sales personnel paying commissions Heyman, each power of attorney for (A) a▇▇▇ ▇▇ ownership, (B) acts o▇ management or bonuses; (jC) any Contract to subscribe or execute negotiable instruments, in each case, that is currently effective and outstanding and which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was will not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued be terminated prior to termination); the Closing;
(mxi) any each Applicable Contract that involves any agreement or commitment under which a Cinemex Company is committed for individual capital expenditures in excess of $250,000 for a single project 2'500,000 pesos or aggregate capital expenditures in excess of $10'000,000 pesos;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (nxii) any sale and leaseback arrangements and installment purchase arrangements; (o) any management each employment, consulting or operating agreements; (p) any Contracts containing in any case a specific clause other similar Applicable Contract with employees or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment consultants of any amount previously paidCinemex Company remaining in effect after the Closing Date and which are not terminable at the will of the applicable Cinemex Company without cost or liability to any Cinemex Company; and
(qxiii) any agreement that restricts the maintenance each amendment, supplement, and modification (whether oral or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (rwritten) any other Contract that materially and adversely affects the ownership or leasing in respect of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeforegoing.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed (b) Except as set forth in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, Schedule 3.17(b) to the Knowledge of SellerCinemex no officer, director, agent, key employee, consultant or contractor of any other party theretoCinemex Company is bound by any Contract that purports to limit the ability of such officer, is in default under any Contract. Each Contract
director, agent, key employee, consultant, or contractor to (i) constitutes a valid and binding obligation of the Acquired Company party thereto andengage in or continue any conduct, activity, or practice material to the Knowledge business of Sellerany Cinemex Company, of each other party thereto; and or (ii) assign to any Cinemex Company or to any other Person any rights to any invention, improvement or discovery.
(c) Except as set forth in Schedule 3.17(c), each Contract required to be identified in Schedule 3.17(a) is in full force and effect as to and is valid and enforceable against the Acquired Cinemex Company party theretothereto in accordance with its terms.
(d) Except as set forth in Schedule 3.17(d):
(i) each Cinemex Company is, andand at all times since January 1, 2002 has been, in substantial compliance with all material terms and requirements of each material Contract identified on Schedules 3.17(a);
(ii) to the Knowledge of SellerCinemex, as to each other party thereto. Except as separately Person that has any material obligation or liability under any material Contract identified or required to be identified on SCHEDULE 5.15.2Schedule 3.17
(a) is, no notice toand at all times since January 1, filing or registration with2002 has been, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force substantial compliance with all material terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of SellerCinemex, fact no event has occurred or circumstance exists that (with or without notice or lapse of time) may would reasonably be expected to contravene, conflict with, or result in a violation or breach of of, or give (x) any Acquired Person other than a Cinemex Company or other Person (y) to the Knowledge of Cinemex, any Cinemex Company the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.material Contract identified on Schedule 3.17(a);
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor no Cinemex Company has given to or received from any Related Person of Seller other Person, any notice or other written communication regarding any actual, alleged, possible, or potential violation or breach of, or default under, any material Contract on Schedule 3.17(a); and
(excluding v) there are no pending renegotiations of, current attempts to renegotiate, or outstanding rights to renegotiate any material terms and conditions or material amounts paid or payable to any Cinemex Company under any of the Acquired Companiesmaterial Contracts identified on Schedule 3.17(a) with any Person and no such Person has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of made written demand for such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Businessrenegotiation.
Appears in 1 contract
Sources: Stock Purchase Agreement (Loews Cineplex Entertainment Corp)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.17(a) contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market of an amount or value in excess of $50,000 100,000 measured for the nine-month period ended September 30, 1998;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person or more Acquired Companies of an amount or value in excess of $100,000 measured with for the nine-month period ended September 30, 1998;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods one or materials by the more Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Companies in excess of $50,000 100,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any the Temporary Leaseholds and personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $100,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate of an Acquired Company or limit the freedom of any Acquired Company or any Affiliate of an Acquired Company to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for commissions or similar payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods and (y) Contracts entered into other than commissions payable in the Ordinary Course of Business with employees and other to sales personnel paying commissions or bonuses; of the Acquired Companies;
(jx) any each power of attorney that is currently effective and outstanding;
(xi) each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into other than in the Ordinary Course of Business that contains or that was entered into at a price provides for an express undertaking by any Acquired Company to be responsible for indirect, consequential or prices materially in excess of, or materially lower than, those currently available; punitive damages;
(lxii) any employment each Applicable Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 100,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the aggregate)Ordinary Course of Business and consistent with prior business practices; and
(nxiv) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2foregoing. Seller The Company has furnished or made available delivered to Buyer complete and correct copies of each of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractSchedule 3.17(a).
(ib) constitutes a valid and binding obligation of the Acquired Company party thereto andExcept as set forth in Schedule 3.17(b), each Contract identified or required to the Knowledge of Seller, of each other party thereto; and (iibe identified in Schedule 3.17(a) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Sellerthe Acquired Companies, as to each other party thereto. is valid and enforceable in accordance with its terms.
(c) Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2in Schedule 3.17(c):
(i) each Acquired Company is, 5.12and at all times has been, 5.13.2 AND 5.15.1 continue in full force material compliance with all applicable terms and requirements of each Contract (either currently in effect (without breach or the Breach of which would not be barred by the a statute of limitations) under which such Acquired Companies of, Company has or giving had any contractual party a right to terminate obligation or modify liability or by which such Contract Acquired Company or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactionsassets owned or used by such Acquired Company is or was bound;
(ii) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Sellerthe Acquired Companies, fact each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times has been, in material compliance with all applicable terms and requirements of such Contract;
(iii) other than the Contemplated Transactions, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a material violation or breach of of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an no Acquired Company has given to or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to received from any other Person any rights notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(d) There are no active renegotiations of, or active attempts to renegotiate, any material amounts paid or payable to any inventionAcquired Company under current or completed Contracts with any Person, improvement, or discovery in connection with the Businessand no such Person has made written demand for such renegotiation.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth (a) Schedule 2.9(a) contains a listing of all Contracts described in SCHEDULE 5.15.1 clauses (i) through (x) below to which the Company or as disclosed in this Agreement, no Acquired Company any of its Subsidiaries is a party (the "Company Material Contracts"). True, correct and complete copies of contracts referred to in clauses (i)-(x) below have been delivered to or bound by: made available to Acquiror and its agents and representatives.
(ai) any Each Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that which involves the future performance of services or delivery of goods or and/or materials by one or more Acquired Companies with a fair market to the Company or any its Subsidiaries of an amount or value in excess of $50,000 to any one Person (except (i) any Contract entered into in the Ordinary Course of Business for the sale of goods 250,000 per annum and which is not terminable upon thirty days' or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or fewer notice;
(ii) those Contracts that may be cancelled Each note, debenture, other evidence of Indebtedness, (including, without limitation, all evidences of Indebtedness owed to the Company by any officer, director or employee of the relevant Acquired Company within 30 days without significant penaltyor any of its Subsidiaries, payment other than pursuant to ordinary course loans for travel and relocation advances and draws on future commissions), guarantee, loan, credit or financing agreement or instrument or other expense Contract for money borrowed, including any agreement or commitment for future loans, credit or financing;
(iii) Each Contract not in the ordinary course of business involving expenditures or receipts of the Company or any its Subsidiaries in excess of $250,000 per annum or which is not terminable upon thirty days' or fewer notice;
(iv) Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other significant impact interest in, any real or personal property and involving aggregate payments in excess of $100,000 per annum and which is not terminable upon thirty days' or fewer notice;
(v) Each joint venture Contract, partnership agreement, or limited liability company agreement;
(vi) Each Contract explicitly requiring capital expenditures after the date hereof in an amount in excess of $250,000 per annum and which is not terminable upon thirty days' or fewer notice;
(vii) Each Contract listed on such Acquired Company); Schedule 2.24;
(cviii) Each Contract requiring the Company or any Contract that is of its Subsidiaries to provide in kind consideration involving an output, requirements amount or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 100,000;
(except any ix) Each Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership or other Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company with any other Person; (h) any Contract containing covenants that restricting in any way purport to restrict the business activity ability of any Acquired the Company or limit the freedom of any Acquired Company Subsidiary to engage in any line business in any manner or in any geographic area; and
(x) Each Contract pursuant to which the Company or any of business its Subsidiaries is obligated to a third party to develop any product or to compete with any Person; technology other than coupon books.
(b) Except as set forth on Schedule 2.9(b) and except as would not have a Material Adverse Effect on the Company and its Subsidiaries taken as a whole, all the Company Material Contracts are (i) any Contract providing for payments to or by any Person based on sales, purchases or profits, other than (x) direct payments for goods in full force and effect and (yii) Contracts entered into in represent the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Contract which provides forlegal, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation obligations of the Acquired Company or the Subsidiary party thereto and, to the Knowledge knowledge of Sellerthe Company, represent the legal, valid and binding obligations of each the other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party parties thereto. Except for those Company Material Contracts denoted with an asterisk (*) as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2Schedule 2.9(a), 5.12no Company Material Contract requires the consent (each, 5.13.2 AND 5.15.1 continue a "Third Party Consent") of any other contracting party to prevent a breach of, a default under, or a termination, adverse change in full force and effect (without breach by the Acquired Companies terms or conditions or adverse modification of, or giving any contractual party a right to terminate or modify such Contract or require the payment acceleration of any penalty Indebtedness or other amount in respect of such obligations under, any Company Material Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3transactions contemplated hereby. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any on Schedule 2.9(b), all of the Acquired Companies) has any Company Material Contracts are enforceable in accordance with their terms except as enforcement may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights or obligations generally and subject as to enforceability, to general principles of equity. Except as set forth on Schedule 2.9(b), the Company and its Subsidiaries are not in default under any Contract with an Acquired such Company or that relates Material Contracts and, to the Business ofCompany's knowledge, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage no other party is in or continue any conductdefault under such Company Material Contracts, activity, or practice relating to the Business of the Acquired Company, or and (ii) assign no event has occurred and no condition or state of facts exists which, with the passage of time or the giving of notice or both, would constitute such a default. No written notice of any claim of default has been given to an Acquired the Company or its applicable Subsidiary with respect to any other Person Company Material Contract. Except as set forth on Schedule 2.9(b), the Company has not received written notice of any rights intent by any party to any invention, improvement, Company Material Contract to terminate or discovery materially amend the terms thereof or to refuse to renew any such Company Material Contract upon expiration of its term. The Company is not currently paying liquidated damages in connection with the Businesslieu of performance under any Company Material Contract.
Appears in 1 contract
Sources: Merger Agreement (Usa Interactive)
Contracts; No Defaults. 5.15.1. Except as set forth in A. SCHEDULE 5.15.1 or as disclosed in this Agreement3.17(A) of the Disclosure Schedule contains a complete ---------------- and accurate list, no Acquired Company is a party and Sellers have delivered to or bound by: Buyer true and complete copies, of:
(ai) any Each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one Company of an amount or more Acquired Companies with a fair market value in excess of Five Thousand and No/100 Dollars ($50,000 5,000.00);
(ii) Each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person Company of an amount or value in excess of Five Thousand and No/100 Dollars (except $5,000.00);
(iiii) any Each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of Five Thousand and No/100 Dollars ($50,000 5,000.00);
(iv) Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than Five Thousand and No/100 Dollars ($5,000.00) and with terms of less than one (1) year);
(v) Each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Software and Intangibles;
(fvi) any Each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any Each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hviii) any Each Applicable Contract containing covenants that in any way purport to restrict the business activity of Company or any Acquired Affiliate of an Company or limit the freedom of Company or any Acquired Affiliate of an Company to engage in any line of business or to compete with any Person; ;
(iix) any Each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods Each power of attorney that is currently effective and outstanding;
(yxi) Contracts Each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by Company to be responsible for consequential damages;
(jxii) any Each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of Five Thousand and No/100 Dollars ($250,000 for a single project 5,000.00);
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xiii) Each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by Company other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale Each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements foregoing.
B. SCHEDULE 3.17(A) of the Disclosure Schedule sets forth reasonably ---------------- complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of Company under the Contracts, and Company' office where details relating to any the Contracts are located.
C. Except as set forth in SCHEDULE 3.17(C) of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractDisclosure ---------------- Schedule:
(i) constitutes a valid Neither Seller (and binding no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Acquired Company party thereto assets owned or used by, Company; and, to
(ii) To the Knowledge of SellerSellers and Company, no officer, director, agent, employee, consultant, or contractor of Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (1) engage in or continue any conduct, activity, or practice relating to the business of Company or (2) assign to Company or to any other Person any rights to any invention, improvement, or discovery.
D. Except as set forth in SCHEDULE 3.17(D) of the Disclosure ---------------- Schedule, each other party thereto; and (iiContract identified or required to be identified in SCHEDULE -------- 3.17(A) of the Disclosure Schedule is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. and is valid and ------- enforceable in accordance with its terms.
E. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2in SCHEDULE 3.17(E) of the Disclosure ---------------- Schedule:
(i) Company is, 5.12and at all times since December 31, 5.13.2 AND 5.15.1 continue 1992, has been, in full force compliance with all applicable terms and effect requirements of each Contract under which such Company has or had any obligation or liability or by which such Company or any of the assets owned or used by such Company is or was bound;
(without breach by the Acquired Companies ofii) Each other Person that has or had any obligation or liability under any Contract under which Company has or had any rights is, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount and at all times since December 31, 1992, has been, in respect full compliance with all applicable terms and requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor Company has not given to or received from any Related Person of Seller other Person, at any time since December 31, 1992, any notice or other communication (excluding whether oral or written) regarding any of the Acquired Companies) has any rights actual, alleged, possible, or obligations under any Contract with an Acquired Company potential violation or that relates to the Business breach of, or default under, any of the Assets owned or used byContract.
F. There are no renegotiations of, an Acquired Company; and (b) attempts to the Knowledge of Seller, no officer, director, agentrenegotiate, or employee of an Acquired outstanding rights to renegotiate any material amounts paid or payable to Company is bound by under current or completed Contracts with any Contract that purports to limit the ability of Person and no such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice Person has made written demand for such renegotiation.
G. The Contracts relating to the Business of the Acquired Companysale, design, manufacture, or (ii) assign to an Acquired provision of products or services by Company have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or to in concert with any other Person any rights to any invention, improvementPerson, or discovery any consideration having been paid or promised, that is or would be in connection with the Businessviolation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1(a) No Seller Contract that is in effect as of the date of this Agreement or on the Closing Date and is described in clauses (i)-(xiv) of the following sentence contains obligations that, if performed by Sellers, would result in a Material Adverse Effect on the Canadian Seller or the US Seller. Except as set forth in SCHEDULE 5.15.1 or as disclosed in As of the date of this Agreement, no Acquired Company is a party to or bound by: Section 3.17(a) of the Seller Disclosure Schedules contains, and as of the Closing Date Section 3.17(a) of the Seller Disclosure Schedules will contain, an accurate and complete (a) any Contract except for the purchase or sale Nabors Contract, which is separately the subject of Real Property; Section 3.17(d)) list, and Sellers will have made available to Buyer accurate and complete copies, of:
(bi) any each Seller Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one any Seller of an amount or more Acquired Companies with a fair market value in excess of $50,000 to any or has a remaining term of more than one Person (except 1) year;
(iii) any each Seller Contract entered into in the Ordinary Course that involves performance of Business for the sale services or delivery of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, to any Seller of an acknowledgment from the Acquired Company, amount or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 25,000 or has a remaining term of more than one (except any 1) year;
(iii) each Seller Contract that was not entered into in the Ordinary Course ordinary course of either Business for consistent with past practices and that (A) involves expenditures or receipts of any Seller in excess of $25,000 or (B) has a remaining term of more than one (1) year, and is not subject to termination without penalty;
(iv) each Seller Contract affecting the purchase ownership of, leasing of, title to, use of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining leasehold or other agreement interest in any personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000 and with any labor union; a term of less than one year);
(gv) any joint ventureeach Seller Contract involving sales agency, partnership sales representation, distributorship or other franchise arrangements;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company Seller with any other Person; ;
(hvii) any each Seller Contract containing covenants that in restrict any way purport to restrict the Seller's business activity of any Acquired Company or limit the freedom of any Acquired Company such Seller to engage in any line of business or to compete with any Person; ;
(iviii) any each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than (x) direct payments for goods and or services;
(yix) Contracts entered into in the Ordinary Course each power of Business with employees and other sales personnel paying commissions or bonuses; (j) attorney of any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Seller relating to either Business or the Assets that was entered into at a price or prices materially in excess of, or materially lower than, those is currently available; effective and outstanding;
(lx) any employment each Seller Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 25,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do xi) each Seller Contract not exceed $500,000 denominated in U.S. or Canadian dollars;
(xii) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by any Seller with respect to either Business other than in the aggregate)ordinary course of such Business consistent with past practices;
(xiii) each Bid that involves the performance of services or delivery of goods or materials by any Seller of an amount of value in excess of $50,000; and
(nxiv) any sale each amendment, supplement and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any foregoing.
(b) Except as set forth in Section 3.17(b) of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractDisclosure Schedules:
(i) constitutes a valid and binding obligation each Seller Contract or Bid identified or required to be identified in Section 3.17(a) of the Acquired Company party thereto and, Seller Disclosure Schedules or which is to the Knowledge of Seller, of each other party thereto; and (ii) be assumed by Buyer under this Agreement is in full force and effect and is valid and enforceable in accordance with its terms;
(ii) each Seller Contract or Bid identified or required to be identified in Section 3.17(a) of the Seller Disclosure Schedules or which is being assumed by Buyer under this Agreement is assignable by the applicable Seller to Buyer without the Consent of any other Person, except as disclosed in or pursuant to Section 3.2(c); and
(iii) each Seller Contract or Bid identified or required to be identified in Section 3.17(a) of the Acquired Company party theretoSeller Disclosure Schedules or which is being assumed by Buyer under this Agreement is expected to produce a positive profit margin for Sellers, andunless otherwise indicated in Section 3.17(a) of the Seller Disclosure Schedules.
(c) Except as set forth in Section 3.17(c) of the Seller Disclosure Schedules:
(i) each Seller is in compliance with all applicable terms and requirements of each Seller Contract which is being assumed by Buyer;
(ii) no Seller has released any of its rights under a Seller Contract which is being assumed by Buyer;
(iii) to Sellers' Knowledge, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Seller Contract which is being assumed by Buyer is in compliance with all applicable terms and requirements of such Seller Contract;
(iv) to Sellers' Knowledge, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may would reasonably be expected to contravene, conflict with, with or result in a violation or breach of Breach of, or give any Acquired Company Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Applicable Contract.Seller Contract that is being assigned to or assumed by Buyer;
5.15.3. Except as set forth in SCHEDULE 5.15.3: (av) neither no event has occurred or circumstance exists under or by virtue of any Seller nor Contract that (with or without notice or lapse of time) would cause the creation of any Related Person of Seller Encumbrance (excluding other than a Permitted Encumbrance) affecting any of the Acquired CompaniesAssets; and
(vi) has any rights or obligations under any there is no Seller Contract listed in Section 3.17(a) of the Seller Disclosure Schedules to be assumed by Buyer on which Sellers are behind schedule with an Acquired Company or that relates respect to the Business of, timely delivery of any products or any services.
(d) Section 3.17(d) of the Assets owned or used bySeller Disclosure Schedules sets forth, an Acquired Company; and (b) with respect to the Knowledge Nabors Contract, a complete and accurate list of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in all agreements, documents and instruments comprising the Nabors Contract (including without limitation all change orders issued or continue any conductotherwise agreed to by Sellers), activity, or practice relating to the Business of the Acquired Company, or (ii) assign all products and services of each Business to an Acquired Company be delivered or performed by Sellers under the Nabors Contract, (iii) the price for each of the 20 rigs delivered or to be delivered under the Nabors Contract (other than the optional, additional 40 rigs which are indicated in the "Purchase Order Detail" listed in Section 3.17(d) of the Seller Disclosure Schedules) (the "Specified Nabors Rigs"), (iv) the delivery date of each of the Specified Nabors Rigs delivered or to be delivered under the Nabors Contract, (v) all payments received from Nabors Corporate Services (or any other Person Affiliate thereof) in respect of each of the Specified Nabors Rigs delivered or to be delivered under the Nabors Contract (including any rights customer deposits and prepayments), and (vi) Sellers' actual or anticipated production costs with respect to any invention, improvement, or discovery in connection with each of the BusinessSpecified Nabors Rigs.
Appears in 1 contract
Sources: Asset Purchase Agreement (Stewart & Stevenson Funding Corp.)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 2.9(a) of the Disclosure Letter contains a complete and accurate list, and Quindeca and Short have delivered to Choice true and complete copies, of each of the following that are currently in effect:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one Quindeca of an amount or more Acquired Companies with a fair market value in excess of $50,000 10,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person Quindeca of an amount or value in excess of $10,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale of goods and that involves expenditures or materials receipts by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Quindeca in excess of $50,000 5,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $1,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customersIntellectual Property Assets;
(vi) each employment agreement, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining agreement and other Applicable Contract to or with any employee, labor union or other agreement with any labor union; employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company Quindeca with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of Quindeca or any Acquired Company Affiliate of Quindeca or limit the freedom of Quindeca or any Acquired Company Affiliate of Quindeca to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by Quindeca to be responsible for consequential damages;
(jxii) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 5,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by Quindeca other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing.
(b) No shareholder of Quindeca (and no Related Person of any shareholder) has or may acquire any maintenance rights under, and no shareholder has or service agreements relating may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Assets; (s) any Contract that involves an account receivable assets owned or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companiesused by, as a wholeQuindeca.
5.15.2. Seller has furnished (c) Each Contract identified or made available required to Buyer complete and correct copies be identified in Part 2.9(a) of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) Disclosure Letter is in full force and effect as to effect.
(d) Quindeca is, and at all times since January 1, 1994 has been, in compliance in all material respects with all applicable terms and requirements of each Contract under which it has or had any obligation or liability or by which it or any of the Acquired Company party theretoassets owned or used by it is or was bound. Each other Person that has or had any obligation or liability under any Contract under which Quindeca has or had any rights is, andand at all times since January 1, to the Knowledge of Seller1994 has been, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue compliance in full force all material respects with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated TransactionsContract. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a material violation of, or breach of of, or give Quindeca or any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: Quindeca has not given to or received from any other Person, at any time since January 1, 1994, any notice or other communication (awhether oral or written) neither Seller nor regarding any Related Person of Seller (excluding any of the Acquired Companies) has any rights actual, alleged, possible, or obligations under any Contract with an Acquired Company potential violation or that relates to the Business breach of, or default under, any of the Assets owned or used byContract.
(e) There are no renegotiations of, an Acquired Company; and (b) attempts to the Knowledge of Seller, no officer, director, agentrenegotiate, or employee of an Acquired Company is bound by outstanding rights to renegotiate any Contract that purports material amounts paid or payable to limit the ability of Quindeca under current or completed Contracts with any Person and no such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice The Contracts relating to the Business of the Acquired Companysale, design, manufacture, or (ii) assign to an Acquired Company provision of products or to services by Quindeca have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person any rights to any invention, improvementPerson, or discovery any consideration having been paid or promised, that is or would be in connection with the Businessviolation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Purchaser true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market of an amount or value in excess of $50,000 10,000.00;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person or more Acquired Companies of an amount or value in excess of $10,000.00;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods one or materials by the more Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Companies in excess of $50,000 10,000.00;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000.00 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate of an Acquired Company or limit the freedom of any Acquired Company or any Affiliate of an Acquired Company to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) provides for an express undertaking by any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; to be responsible for consequential damages;
(kxii) any each Applicable Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 10,000.00;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the aggregate); Ordinary Course of Business;
(nxiv) each Owned Mortgage Loan and any sale Servicing Agreements and leaseback arrangements escrow agreement relating thereto;
(xv) each Applicable Contract with each of the Company's Investors, and
(xvi) each amendment, supplement, and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any foregoing; Schedule 3.17(a) of the Assets; (s) any Contract that involves an account receivable or note receivable Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of more than $100,000; the remaining commitment of the Acquired Companies under the Contracts, and (t) any other Contract which is material to the Acquired Companies, as a whole' office where details relating to the Contracts are located.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies (b) Except as set forth in Schedule 3.17(b) of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractDisclosure Letter:
(i) constitutes a valid no Seller (and binding no Related Person of Sellers) has or may acquire any rights under, and no Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company party thereto Company; and, to the Knowledge of Seller, of each other party thereto; and
(ii) no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Schedule 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Schedule 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as to set forth in Schedule 3.17(d) of the Disclosure Letter:
(i) each Acquired Company party thereto, and, to is and at all times has been in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the Knowledge of Seller, as to assets owned or used by such Acquired Company is or was bound;
(ii) each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is and at all times has been, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an no Acquired Company has given to or that relates to the Business received from any other Person at any time any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any of the Assets owned or used byContract.
(e) There are no renegotiations of, an Acquired Company; and (b) attempts to the Knowledge of Seller, no officer, director, agentrenegotiate, or employee of an outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company is bound by under current or completed Contracts with any Contract that purports to limit the ability of Person and no such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice The Contracts relating to the Business sale, design, manufacture, or provision of products or services by the Acquired CompanyCompanies have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Section 3.17(a) of the Disclosure Schedule contains a complete and accurate list, and Seller has made available to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one to the Business of an amount or more Acquired Companies with a fair market value in excess of $50,000 to any one Person 10,000;
(except (iii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for Business;
(iii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the sale of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase orderownership of, an acknowledgment from the Acquired Companyleasing of, title to, use of, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment any leasehold or other expense interest in, any real or personal property;
(iv) each licensing agreement or other significant impact on such Acquired Company); (c) Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); Intellectual Property Assets;
(dv) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 (except any Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company the Business with any other Person; ;
(hvi) any each Applicable Contract containing covenants that in any way purport to restrict the its (or any of its Affiliates’) business activity of any Acquired Company or limit the its (or any of its Affiliates’) freedom of any Acquired Company to engage in any line of business or to compete with any Person; ;
(ivii) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods goods;
(viii) each power of attorney that is currently effective and outstanding;
(yix) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by the Business to be responsible for consequential damages;
(x) each Applicable Contract for capital expenditures;
(xi) each written warranty, guaranty, and or other similar undertaking with employees and respect to contractual performance extended by the Business other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into than in the Ordinary Course of Business Business; and
(xii) each amendment, supplement, and modification (whether oral or that was entered into at a price or prices materially written) in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeforegoing.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no No officer, director, agent, employee, consultant, or employee contractor of an Acquired Company the Business is bound by any Contract that purports to limit the ability of such officer, director, agent or agent, employee, consultant, or contractor to (iA) engage in or continue any conduct, activity, or practice relating to the Business business of the Acquired CompanyBusiness, or (iiB) assign to an Acquired Company the Business or to any other Person any rights to any invention, improvement, or discovery discovery.
(c) Each Contract identified or required to be identified in connection Section 3.17(a) of the Disclosure Schedule is in full force and effect and is valid and enforceable in accordance with its terms.
(d) (i) each of Seller and XCEL Japan is, and at all times since January 1, 2004 has been, in full compliance with all applicable terms and requirements of each Contract relating to the Business.Business under which it has or had any obligation or liability or by which it or any of the assets owned or used by it is or was bound;
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.18 contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each written Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market of an amount or value in excess greater than $10,000 (or greater than $25,000 for equipment leases);
(ii) each written Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies of an amount or value greater than $50,000 to any one Person 5,000;
(except (iiii) any each written Applicable Contract that was not entered into in the Ordinary Course of Business for and that involves expenditures or receipts of one or more Acquired Companies greater than $1,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other written Applicable Contract affecting the sale of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase orderownership of, an acknowledgment from the Acquired Companyleasing of, title to, use of, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment any leasehold or other expense interest in, any real or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 personal property (except any Contract entered into in the Ordinary Course personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of Business for the purchase less than $5,000 and with terms of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transactionless than one year); ;
(ev) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any each collective bargaining agreement and other written Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvi) any each joint venture, partnership or partnership, and other written Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hvii) any each written Applicable Contract for or with sales representatives, manufacturing representatives, consultants, advisors or finders;
(viii) each written Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate of an Acquired Company or limit the freedom of any Acquired Company or any Affiliate of an Acquired Company to engage in any line of business or to compete with any Person; ;
(iix) any each written Applicable Contract providing for payments to or by any Person based on sales, purchases or profits, other than (x) direct payments for goods and (y) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 50,000; and
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 x) each amendment, supplement, and modification (whether oral or written) in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing. No Acquired Company is party to an oral contract which would be reasonably likely to have a material adverse effect on the business, financial condition, operations, results of operations or any maintenance or service agreements relating to future prospects of any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished (b) Except as set forth on Schedule 3.18, each Contract identified or made available required to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect be identified on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) Schedule 3.18 is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. and is valid and enforceable in accordance with its terms.
(c) Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2Schedule 3.18:
(i) to Sellers' Knowledge, 5.12, 5.13.2 AND 5.15.1 continue each Acquired Company is in full force compliance with all applicable terms and effect requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(without breach by the ii) to Sellers' Knowledge, each other Person that has or had any obligation or liability under any Contract under which an Acquired Companies of, Company has or giving had any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount rights is in respect full compliance with all applicable terms and requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No to Sellers' Knowledge, no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.;
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an no Acquired Company has given to or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to received from any other Person any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract; and
(v) no Acquired Company has paid any amounts under any current or expired bonus or profit sharing plan except in accordance with the terms and calculations provided for by such plans.
(d) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any inventionmaterial amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and such Person has made written demand for such renegotiation.
(e) The Contracts relating to the sale, improvementdesign, manufacture, or discovery provision of products or services by the Acquired Companies have been entered into in connection the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with the Businessany other Person, or any consideration having been paid or promised, that is or, to Sellers' Knowledge, would be in violation of any Legal Requirement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Kimberton Enterprises Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 3.15(a) of the Disclosure Letter contains a complete and accurate list, and the Company has delivered to the Purchasers true and complete copies, of:
(i) each Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Company reasonably expected by the Company to be for an annual amount or more Acquired Companies with a fair market value in excess of $50,000 500,000, including, for purposes of this clause (a)(i), each Contract with group purchasing organizations (GPOs), Integrated Delivery Networks (IDNs) and Contracts relating to any one Person asset management partnership programs (except AMPPs), regardless of annual amount or value;
(iii) any each Contract entered into in the Ordinary Course that involves performance of Business for the sale services or delivery of goods or materials by to the Acquired Company at market prices that is represented solely by a customer purchase order, of an acknowledgment from the Acquired Company, amount or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 500,000;
(iii) each Contract that would be a "material contract" (as defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC and assuming the Company was obligated to file applicable reports under the Exchange Act) to be performed after the date of this Agreement;
(iv) each (A) lease, sub-lease, rental or occupancy agreement and other Contract affecting the leasing or use of, or any leasehold or other interest in, any real property used or occupied by the Company, by office location and (B) each lease, license, installment and conditional sale agreement and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $500,000 and with terms of less than one year);
(v) each licensing agreement or other Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); intellectual property, excluding (eA) agreements with current and former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customersCompany's Intellectual Property Rights and (B) perpetual, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; paid-up licenses for commonly available software programs;
(fvi) any collective bargaining or other agreement with any labor union; (g) any each joint venture, partnership or partnership, and other Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hvii) any each Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or limit the freedom of any Acquired the Company to engage in any line of business or to compete with any Person; ;
(iviii) any each Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each power of attorney that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any each Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 500,000;
(it being warranted that xi) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Company other than in the aggregate)Ordinary Course of Business; and
(nxii) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any foregoing.
(b) Except as set forth in Part 3.15(b) of the Assets; (sDisclosure Letter, each Contract identified or required to be identified in Part 3.15(a) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms, except as to limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors' rights and general principles of equity that restrict the Acquired availability of equitable remedies.
(c) Except as set forth in Part 3.15(c) of the Disclosure Letter:
(i) the Company party thereto, and, is in compliance in all material respects with the terms and requirements of each Contract;
(ii) to the Knowledge of Sellerthe Company, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing Person that has any obligation or registration with, or Consent of, liability under any Person Contract is needed in order that compliance in all material respects with the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Sellerthe Company, fact no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a material violation or material breach of of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract; and
(iv) the Company has not given to or received from any other Person any written notice regarding (A) any actual, alleged, possible, or potential material violation or material breach of, or default under, any Contract or (B) termination or non-renewal of any Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (ad) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) The Company has any rights or obligations under any Contract with an Acquired Company or that relates received no written demands to the Business ofrenegotiate, or any of the Assets owned or used byand, an Acquired Company; and (b) to the Knowledge of Sellerthe Company, there are no officeroutstanding rights to renegotiate, director, agent, any material amounts paid or employee of an Acquired payable to the Company is bound by under current or completed Contracts with any Contract that purports to limit the ability of such officer, director, agent or employee, to Person.
(ie) engage in or continue any conduct, activity, or practice The Contracts relating to the sale or provision of products or services by the Company have been entered into in the Ordinary Course of Business and have been entered into without the commission of the Acquired Companyany act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Universal Hospital Services Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.20(a) contains an accurate and complete list, and such Seller has delivered to Buyer accurate and complete copies, of:
(i) each Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) commitment that involves the future performance of services or delivery of goods or materials by one by, or more Acquired Companies with a fair market indebtedness of, such Seller of an amount or value in excess of Twenty-Five Thousand and 00/100 Dollars ($50,000 25,000.00);
(ii) each Contract or commitment that involves performance of services or delivery of goods or materials to any one Person such Seller (except other than employment or individual independent contractor agreements substantially in the Seller’s standard form made available to Buyer) of an amount or value in excess of Twenty-Five Thousand and 00/100 Dollars (i$25,000.00);
(iii) any each Contract that was not entered into in the Ordinary Course ordinary course of Business for business, consistent with past practice;
(iv) each lease, rental, occupancy, license, installment, conditional sale or other Contract or arrangement affecting the sale of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase orderownership of, an acknowledgment from the Acquired Companyleasing of, title to, use of, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment any leasehold or other expense interest in, any real property providing for future monthly rental payments;
(v) each lease, rental, license, installment, conditional sale or other significant impact on Contract or arrangement affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any Tangible Personal Property providing for future monthly rental payments (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than Ten Thousand and 00/100 Dollars ($10,000.00) and with a term of less than one year);
(vi) each licensing agreement or other applicable Contract with respect to such Acquired CompanySeller’s Intellectual Property Rights and Licensed Rights (whether inbound or outbound); (c) , including agreements with current or former employees, consultants, or contractors regarding the appropriation or the nondisclosure of any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); Intellectual Property Rights or Licensed Rights;
(dvii) each collective bargaining, employment, deferred compensation, severance and other agreement or any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 (except any Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking type of the obligations Sellers;
(viii) each Contract or understanding with any of customers, suppliers, such Seller’s officers, directors, or employees, Sellerother than Employee Benefit Plans;
(ix) each franchise, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership partnership, strategic alliance, co-marketing, co-promotion, co-packaging or joint development Contract or other Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company such Seller with any other Person; ;
(hx) any each Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company such Seller or limit the freedom of any Acquired Company such Seller to engage in any Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions marked [***]. line of business or to compete with any Person; Person or which contain any exclusivity, non-competition, non-solicitation or no-hire provisions;
(ixi) any each Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than (x) direct payments for goods and goods;
(yxii) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any each Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of Fifty Thousand and 00/100 Dollars ($250,000 for 50,000.00);
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance by such Seller extended by such Seller;
(xiv) each Contract with a single project Government Body;
(it being warranted that xv) each Contract pursuant to which such Seller or any Subsidiary of such Seller has guaranteed any obligations of such Seller;
(xvi) each Contract pursuant to which such Seller has a right of first option or right of first refusal with respect to material elements of the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paidtransaction underlying the Contract; and
(qxvii) any agreement that restricts the maintenance each amendment, supplement, and modification (whether oral or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (rwritten) any other Contract that materially and adversely affects the ownership or leasing in respect of any of the foregoing. Schedule 3.20(a) sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts.
(b) [INTENTIONALLY DELETED]
(i) Each Contract included in the Acquired Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; Assumed Liabilities is legal, valid, binding and (t) any other Contract which is material to the Acquired Companiesenforceable against such Seller, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of such Seller, any against each other party thereto, is has been executed in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto andcompliance with all applicable Legal Requirements, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect and will continue to be so legal, valid, binding and enforceable and in full force and effect following the assignment of such Contract at the Closing or pursuant to other arrangements in accordance with this Agreement, as the case may be, and (ii) such Seller is not and, to the Acquired Company such Seller’s Knowledge, no other party theretois, in breach or default, and, to the Knowledge of such Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that which would constitute (with or without notice or lapse of timetime or both) may contravene, conflict with, or result in a violation or breach of Breach (or give rise to any Acquired Company right of termination, modification, cancellation or other Person the right to declare a default or exercise acceleration) under any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable such Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (ad) neither There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to such Seller nor under current or completed Contracts with any Related Person of Seller having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation.
(excluding any of the Acquired Companiese) has any rights or obligations under any Each Contract with an Acquired Company or that relates relating to the Business ofsale, design, manufacture or provision of products or services by such Seller has been entered into in the ordinary course of business, consistent with past practice, of such Seller and has been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement. Certain information in this document has been omitted and filed separately with the Assets owned or used by, an Acquired Company; Securities and (b) Exchange Commission. Confidential treatment has been requested with respect to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Businessomitted portions marked [***].
Appears in 1 contract
Sources: Asset Purchase Agreement (Kimball Electronics, Inc.)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 3.17(a) of the Disclosure Letter contains a complete and accurate list of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Company of an amount or more Acquired Companies with a fair market value in excess of $50,000 5,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person the Company of an amount or value in excess of $5,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for Business;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the sale ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property of goods the Company (except personal property leases and installment and conditional sales agreements having a value per item or materials by aggregate payments of less than $2,500);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property of the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, including agreements with current or such other form documents as are ordinarily used to memorialize such a transaction former employees, consultants, or (ii) those Contracts that may be cancelled by contractors regarding the relevant Acquired Company within 30 days without significant penalty, payment appropriation or other expense or other significant impact on such Acquired Company); (c) the non-disclosure of any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 (except any Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking Intellectual Property of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Company;
(fvi) any collective bargaining or other agreement with any labor union; (g) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired the Company with any other Person; ;
(hvii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Acquired Affiliate of the Company or limit the freedom of the Company or any Acquired Affiliate of the Company to engage in any line of business or to compete with any Person; ;
(iviii) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each power of attorney relating to the Company that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 15,000;
(it being warranted that xi) each written warranty, guaranty and other similar undertaking with respect to performance by the commitments for all undisclosed Contracts for such projects do Company under any Applicable Contract not exceed $500,000 otherwise disclosed on Part 3.17(a) of the Disclosure Letter made or provided by the Company other than in the aggregateOrdinary Course of Business;
(xii) each Designated Provider Agreement (and Seller has delivered to Buyer copies of the ten (10) Designated Provider Agreements pursuant to which the Company has generated the greatest amount of premium revenue during the twelve (12) month period ended August 31, 2005 (the “Top Ten Designated Provider Agreements”) that are correct and complete in all material respects); and
(nxiii) any sale each material amendment, supplement, and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing modification in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) Seller (and no Related Person of Seller) does not have and may not acquire any rights under, nor does Seller have or may become subject to any maintenance obligation or service agreements relating liability under, any Contract that relates to the business of, or any of the Assetsassets owned or used by, the Company; and
(sii) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of SellerSeller and the Company, no officer, director, agent, employee, consultant, or contractor of the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of the Company, or (B) assign to the Company or to any other party theretoPerson any rights to any invention, is in default under any Contract. Each Contractimprovement, or discovery.
(ic) constitutes a valid and binding obligation Except as set forth in Part 3.17(c) of the Acquired Company party thereto andDisclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Knowledge of Seller, of each other party thereto; and (ii) Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms with respect to Seller and the Company, except as such enforcement may be limited by general equitable principles or by applicable bankruptcy, insolvency, moratorium or similar laws and judicial decisions from time to the Acquired Company party theretotime in effect which affect creditors’ rights generally, and, to the Knowledge of Seller, as to each all such Contracts are valid and enforceable in accordance with their terms against all other party parties thereto. .
(d) Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2in Part 3.17(d) of the Disclosure Letter:
(i) the Company is, 5.12, 5.13.2 AND 5.15.1 continue in full force material compliance with the terms and effect (without breach requirements of each Applicable Contract under which the Company has any obligation or liability or by which the Company or any of the assets owned or used by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated TransactionsCompany is bound;
(ii) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact each other Person that has any obligation or liability under any Applicable Contract under which the Company has any rights is in material compliance with the applicable terms and requirements of such Contract; and
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravenecontravenes, conflict conflicts with, or result in a violation violates or breach of breaches, or give any Acquired gives the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the Business.
Appears in 1 contract
Sources: Stock Purchase Agreement (Alliance Bankshares Corp)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.17(a) contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one the Acquired Company taken together or more to the Acquired Companies with a fair market Company taken together of an amount or value in excess of $50,000 to any one Person 5,000;
(except (iii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value taken together in excess of $50,000 5,000;
(iii) each lease, rental or occupancy agreement, license, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases having a value per item or aggregate payments of less than $5,000 and with terms of less than one year);
(iv) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fv) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees relating to wages, hours, and other conditions of employment;
(gvi) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any the Acquired Company with any other Person; ;
(hvii) any each Applicable Contract containing covenants that in any way purport to restrict the Acquired Company's business activity of any Acquired Company or limit the freedom of any the Acquired Company to engage in any line of business or to compete with any Person; ;
(iviii) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each power of attorney that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) any Contract which provides for, or relates to, for an express undertaking by the incurrence by an Acquired Company of Indebtedness; to be responsible for consequential damages;
(kxi) any each Applicable Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 5,000;
(it being warranted that xii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Acquired Company other than in the aggregate)Ordinary Course of Business; and
(nxiii) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements foregoing.
(a) sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Company under the Contracts, and the Acquired Company's offices where details relating to the Contracts are located.
(b) Except as set forth in Schedule 3.17(b) or as is set forth in the Contemplated Transactions:
(i) no Seller nor any Related Person of Seller has or may acquire any rights under, and no Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Assets; (s) any Contract that involves an account receivable assets owned or note receivable of more than $100,000; and (t) any other Contract which is material to used by, the Acquired Companies, as a whole.Company;
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, (ii) to the Knowledge of SellerSellers and the Acquired Company, no officer, director, agent, employee, consultant, or contractor of the Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of the Acquired Company, or (B) assign to the Acquired Company or to any other party theretoPerson any rights to any invention, improvement, or discovery;
(iii) no Contract identified or required to be identified in Schedule 3.17(a) contains any term or requirement that is extraordinary, or not customary in default under any Contract. Each Contractthe industries in which the Acquired Companies operate.
(c) Except as set forth in Schedule 3.17(c):
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, each Contract identified or required to the Knowledge of Seller, of each other party thereto; and (iibe identified in Schedule 3.17(a) is in full force and effect and is valid and enforceable in accordance with its terms and that no arrangements exist which are not reflected on the Financial Statements and the Interim Financial Statements, and that no default known to Sellers exists under any such agreements.
(ii) no Contract identified or required to be identified in Schedule 3.17(a) contains any term or requirement that is extraordinary, or not customary in the industries in which the Acquired Companies operate.
(d) Except as to set forth in Schedule 3.17(d):
(i) Acquired Company is, and at all times since January 1, 1995 has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability in excess of $5,000 or by which such Acquired Company or any of the assets owned or used by such Acquired Company with a value in excess of $5,000 is or was bound;
(ii) each other Person (other than a Seller) that has or had any obligation or liability under any Contract under which the Acquired Company party theretohas or had any rights and involving any obligation or liability in excess of $5,000 is, andand at all times since January 1, to the Knowledge of Seller1995 has been, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all applicable terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give any the Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify, any Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor any Related Person of Seller (excluding any of the Acquired CompaniesCompany has not given to or received from any other Person, at any time since January 1, 1995, any notice or other communication (whether oral or written) has regarding any rights actual, alleged, possible, or obligations under any Contract with an Acquired Company potential violation or that relates to the Business breach of, or default under, any Contract involving any obligation or liability in excess of the Assets owned $5,000;
(e) There are no renegotiations of, attempts to renegotiate, or used by, an Acquired Company; and (b) outstanding rights to renegotiate any material amounts paid or payable to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by under current or completed Contracts with any Contract that purports to limit the ability of Person and no such officer, director, agent or employee, to Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice The Contracts relating to the Business sale, design, manufacture, or provision of products or services by the Acquired CompanyCompany have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Integrated Orthopedics Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.20(a) contains an accurate and complete list, and Company, Suzhou and, with respect to the Franklin Street Property or the Business, E122 , have delivered to Buyer accurate and complete copies, except as specifically contemplated below, (which Schedule separately indicates and discloses which Contracts relate to the Business or Assets and which Contracts do not relate to the Business or Assets), of:
(i) each Company Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one any Seller of an amount or more Acquired Companies with a fair market value in excess of $50,000 50,000;
(ii) each Company Contract that involves performance of services or delivery of goods or materials to any one Person Seller of an amount or value in excess of $50,000;
(except (iiii) any each Company Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Seller in excess of $50,000 50,000;
(iv) each Company Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $50,000 and with a term of less than one year);
(v) each Company Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(vi) each Company Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company Seller with any other Person; ;
(hvii) any each Company Contract containing covenants that in any way purport to restrict the any Seller’s business activity of any Acquired Company or limit the freedom of any Acquired Company Seller to engage in any line of business or to compete with any Person; ;
(iviii) each Company Contract with a value in excess of $50,000 providing for the indemnification, hold harmless or defense by any Seller of any Person;
(ix) each Company Contract with a value in excess of $50,000 providing for the nondisclosure or maintenance of confidentiality by any Seller Party with respect to information (proprietary or otherwise) of any Person;
(x) each Company Contract providing for payments to or by any Person based on sales, purchases or profits, other than (x) direct payments for goods goods;
(xi) each power of attorney of any Seller that is currently effective and outstanding;
(yxii) Contracts entered into in the Ordinary Course of Business with employees and other sales personnel paying commissions or bonuses; (j) any Contract which provides for, or relates to, the incurrence by an Acquired each Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business contains or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; provides for an express undertaking by any Seller to be responsible for consequential damages;
(lxiii) any employment each Company Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 50,000;
(it being warranted xiv) each Company Contract not denominated in U.S. dollars that is valued in excess of $50,000(USD);
(xv) each written warranty, guaranty and/or other similar undertaking with respect to contractual performance extended by any Seller and related to the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Business; and
(xvi) each amendment, supplement and modification (whether oral or written) in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements foregoing. Schedule 3.20(a) sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, and with respect to Subsections (i) and (ii) above, the amount of the remaining commitment of the respective Seller under the Contracts and the location of the respective Seller’s office where details relating to the Contracts are located. Notwithstanding the foregoing, disclosure with respect to the Retained Business is limited to the information specified in Schedule 3.20(a).
(b) Except as set forth in Schedule 3.20(b), neither Shareholder nor any other shareholder or equity owner has or may acquire any rights under, and neither Shareholder nor any other shareholder or equity owner has or may become subject to any obligation or liability under, any Contract that relates to the business of any Seller, the Business or any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed (c) Except as set forth in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each ContractSchedule 3.20(c):
(i) constitutes a valid each Contract identified or required to be identified in Schedule 3.20(a) and binding obligation of the Acquired Company party thereto and, which is to the Knowledge of Seller, of each other party thereto; and (ii) be assigned to or assumed by Buyer under this Agreement is in full force and effect as and is valid and enforceable in accordance with its terms;
(ii) each Contract identified or required to be identified in Schedule 3.20(a) and which is being assigned to or assumed by Buyer is assignable by the Acquired Company Seller that is party thereto, to such Contract to Buyer without the consent of any other Person; and,
(iii) to the Knowledge of Sellereach Seller Party, no Contract identified or required to be identified in Schedule 3.20(a) and which is to be assigned to or assumed by Buyer under this Agreement will upon completion or performance thereof have a material adverse effect on the business, assets, condition (financial or otherwise) or prospects of any Seller or the business to be conducted by Buyer with the Assets.
(d) Except as to set forth in Schedule 3.20(d):
(i) each Seller is, and at all times has been, in compliance with all applicable material terms and requirements of each Contract which is being assumed by Buyer;
(ii) each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Contract which is being assigned to Buyer is, no notice toand at all times has been, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force compliance with all material terms and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect requirements of such Contract as a result of the consummation of the Contemplated TransactionsContract;
(iii) following the consummation of the Contemplated Transactions. No no event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, with or result in a violation or breach of Breach of, or give any Acquired Company Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate or modify, any Applicable Contract.Contract that is being assigned to or assumed by Buyer;
5.15.3. Except as set forth in SCHEDULE 5.15.3: (aiv) neither Seller nor any Related Person no event has occurred or circumstance exists under or by virtue of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract that (with an Acquired Company or that relates to without notice or lapse of time) would cause the Business of, or creation of any Encumbrance affecting any of the Assets owned other than the Permitted Encumbrances; and
(v) no Seller has given to or used byreceived from any other Person, an Acquired Company; and at any time, any notice or other communication (bwhether oral or written) to the Knowledge of Sellerregarding any actual, no officeralleged, director, agentpossible or potential violation or Breach of, or employee of an Acquired Company is bound by default under, any Contract that purports which is being assigned to limit or assumed by Buyer.
(e) There are no renegotiations of, attempts to renegotiate or outstanding rights to renegotiate any material amounts paid or payable to any Seller under current or completed Contracts with any Person having the ability of contractual or statutory right to demand or require such officer, director, agent or employee, to renegotiation and no such Person has made written demand for such renegotiation.
(if) engage in or continue any conduct, activity, or practice Each Contract relating to the sale, design, manufacture or provision of products or services by Company or Suzhou has been entered into in the Ordinary Course of Business of Company or Suzhou, as the Acquired Companycase may be, and has been entered into without the commission of any act alone or in concert with any other Person, or (ii) assign to an Acquired Company any consideration having been paid or to promised, that is or would be in violation of any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreementa. Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, no Acquired Company is a party and Seller has delivered to or bound by: Buyer true and complete copies, of:
(ai) any each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market Company of an amount or value in excess of $50,000 10,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person or more Acquired Company of an amount or value in excess of $10,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods one or materials by the more Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value in excess of $50,000 10,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any the Acquired Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Acquired Company or any Affiliate of the Acquired Company or limit the freedom of the Acquired Company or any Affiliate of the Acquired Company to engage in any line of business or to compete with any Person; ;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) any Contract which provides for, or relates to, for an express undertaking by the incurrence by an Acquired Company of Indebtedness; to be responsible for consequential damages;
(kxii) any each Applicable Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 10,000;
(it being warranted that xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the commitments for all undisclosed Contracts for such projects do not exceed $500,000 Acquired Company other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each amendment, supplement, and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating to any foregoing. Part 3.17(a) of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Acquired CompaniesContracts, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies the amount of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation remaining commitment of the Acquired Company party thereto andunder the Contracts, and the Acquired Company' office where details relating to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contractare located.
5.15.3. b. Except as set forth in SCHEDULE 5.15.3: Part 3.17(b) of the Disclosure Letter:
(ai) neither Seller nor any (and no Related Person of Seller (excluding any of the Acquired Companieseither Seller) has or may acquire any rights under, and neither Seller has or obligations under may become subject to any obligation or liability under, any Contract with an Acquired Company or that relates to the Business business of, or any of the Assets assets owned or used by, an the Acquired Company; and and
(bii) to the Knowledge of SellerSeller and the Acquired Company, no officer, director, agent, employee, consultant, or employee contractor of an the Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or agent, employee, consultant, or contractor to (iA) engage in or continue any conduct, activity, or practice relating to the Business business of the Acquired Company, or (iiB) assign to an the Acquired Company or to any other Person any rights to any invention, improvement, or discovery discovery.
c. Except as set forth in connection Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
d. Except as set forth in Part 3.17(d) of the Business.Disclosure Letter:
(i) the Acquired Company is, and at all times since formation has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound; (ii) each other Person that has or had any obligation or liability under any Contract under which the Acquired Company has or had any rights is, and at all times since formation has been, in full compliance with all applicable terms and requirements of such Contract;
Appears in 1 contract
Sources: Stock Purchase Option Agreement (Cogenco International Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Section 3.20(a) of the Disclosure Schedule contains an accurate and complete list, and Sellers have made available to Buyers accurate and complete copies, of:
(i) each Seller Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one a Seller of an amount or more Acquired Companies with a fair market value in excess of One Hundred Thousand Dollars ($50,000 100,000) in any twelve (12) month period;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to a Seller of an amount or value in excess of One Hundred Thousand Dollars ($100,000) in any one Person twelve (except 12) month period;
(iiii) any each Seller Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Seller in excess of One Hundred Thousand Dollars ($50,000 100,000) in any twelve (12) month period;
(iv) each Real Property Lease and Seller Contract affecting the ownership of, leasing of, title to, use of, license of or any leasehold or other interest in any Tangible Personal Property (except any personal property leases and installment and conditional sales agreements having a value less than One Hundred Thousand Dollars ($100,000);
(v) each Seller Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any collective bargaining or other agreement with any labor union; (g) any joint venture, partnership union or other employee representative of a group of employees relating to wages, hours and other conditions of employment;
(vi) each Seller Contract (however named) involving a sharing of profits, losses, costs or liabilities by any Acquired Company Seller with any other Person; ;
(hvii) any each Seller Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company Business or limit the freedom of any Acquired Company a Seller to engage in any line of business or to compete with any Person; , except for non-disclosure, proprietary information or confidentiality agreements with Third Parties entered into in the Ordinary Course of Business and which have be previously made available to Buyers;
(iviii) any each Seller Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods; EXECUTION VERSION
(ix) each power of attorney of a Seller that is currently effective and outstanding with respect to the Business;
(x) direct payments for goods and (y) Contracts each Seller Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by a Seller to be responsible for consequential damages;
(jxi) any each Seller Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of One Hundred Thousand Dollars ($250,000 100,000);
(xii) each Government Contract or Bid;
(xiii) each Seller Contract pursuant to which a third party has licensed to a Seller any Intellectual Property that is material to the operation of the Business, other than licenses for “shrink wrap” or other commercially available software or other technology;
(xiv) each Seller Contract pursuant to which a Seller has granted a third party any rights or licenses to any material Intellectual Property of such Seller, other than non-exclusive licenses granted in the Ordinary Course of Business;
(xv) each Seller Contract pursuant to which a Seller has engaged, or entered into an engagements with any third party to develop or create any software or other technology or Intellectual Property rights for a single project Seller;
(it being warranted xvi) each Seller Contract that is classified or that involves the commitments for all undisclosed Contracts for such projects do not exceed $500,000 use of classified Assets; and
(xvii) each written warranty and guaranty with respect to contractual performance extended by a Seller other than in the aggregate); Ordinary Course of Business.
(nb) Except as set forth in Section 3.20(b) of the Disclosure Schedule, neither Shareholder has or may acquire any sale rights under, and leaseback arrangements and installment purchase arrangements; (o) neither Shareholder has or may become subject to any management obligation or operating agreements; (p) liability under, any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects relates to the ownership Business or leasing of any of the Assets or any maintenance or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies (c) Except as set forth in Section 3.20(c) of the Disclosure Schedule, each Contract identified or required to be identified in Section 3.20(a) of the Disclosure Schedule comprising the Assumed Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes full force and effect and is a valid and binding obligation of the Acquired Company Seller party thereto and, to Sellers’ Knowledge, a valid and binding obligation of the Knowledge other party or parties thereto enforceable against such party or parties in accordance with its terms subject to the effects of Sellerbankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to tor affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law). EXECUTION VERSION
(d) Except as set forth in Section 3.20(d) of the Disclosure Schedule:
(i) each Seller is, and at all times since June 1, 2007 has been, in material compliance with all applicable terms and requirements of each other party thereto; Seller Contract which is being assumed by Buyer and to which it is a party;
(ii) is in full force and effect as to the Acquired Company party theretoSellers’ Knowledge, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2Person that has or had any obligation or liability under any Seller Contract which is being assigned to Buyer is, and at all times since June 1, 2007 has been, in material compliance with all applicable terms and requirements of such Contract;
(iii) to Sellers’ Knowledge, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or the lapse of time) may contravene, conflict with, with or result in a violation or breach of material Breach of, or give Sellers or any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under or to cancel, terminate or modify, any Applicable Seller Contract comprising an Assumed Contract; and
(iv) to Sellers’ Knowledge, no event has occurred or circumstance exists under or by virtue of any Seller Contract that (with or without notice or the lapse of time) would cause the creation of any Encumbrance affecting any of the Assets, except Permitted Encumbrances.
5.15.3. (e) Except as set forth in SCHEDULE 5.15.3: (aSection 3.20(e) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) Disclosure Schedule, no Seller has received written notice of any rights or obligations default by it under any Seller Contract comprising the Assumed Contracts, except for defaults that are not material.
(f) There are no existing renegotiations of or, to Sellers’ Knowledge, attempts to renegotiate, any material amounts paid or payable to a Seller under current or completed Seller Contract comprising the Assumed Contracts with an Acquired Company any Person having the contractual or that relates statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation.
(g) Except as set forth in Section 3.20(g) of the Disclosure Schedule, each Seller Contract comprising the Assumed Contracts relating to the sale, design, manufacture or provision of products or services by a Seller has been entered into in the Ordinary Course of Business ofand has been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the BusinessLegal Requirement.
Appears in 1 contract
Sources: Asset Purchase Agreement
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Schedule 3.17(a) contains a complete and accurate list, and Seller has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies or otherwise in connection with a fair market the Business of an amount or value in excess of $50,000 100,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to any one Person or more Acquired Companies or otherwise in connection with the Business of an amount or value in excess of $100,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for and that involves expenditures or receipts of one or more Acquired Companies or otherwise in connection with the sale of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Business in excess of $50,000 25,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights or other intellectual property, including agreements with current or former employees which are still in effect, consultants or contractors regarding the appropriation or the non-disclosure of any Contract of the Intellectual Property Assets other than those agreements with employees entered into in the Ordinary Course ordinary course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); business;
(evi) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; (f) any each collective bargaining agreement and other Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hvii) any each Applicable Contract containing covenants that in any material way purport to restrict the business activity of the Business or any Acquired Company or any Related Person of an Acquired Company or limit the freedom of the Business or any Acquired Company or any Related Person of an Acquired Company in any material way to engage in any of its line of business or to compete with any Person; Person in its lines of business;
(iix) any each Applicable Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(x) direct payments for goods each power of attorney that is currently effective and outstanding which could effect in a material way the Business or the Acquired Companies;
(yxi) Contracts each Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) provides for an express undertaking by any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; to be responsible for indirect, consequential or punitive damages;
(kxii) any each Applicable Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 25,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xiii) each written warranty, guaranty and other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each material amendment, supplement and leaseback arrangements and installment purchase arrangements; modification (owhether oral or written) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or any maintenance or service agreements relating foregoing. Schedule 3.17(a) sets forth sufficient details concerning such Contracts to any of identify the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; Contracts, and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business of, or any of the Assets owned or used by, an Acquired Company; and (b) to the Knowledge of Seller, no officer, director, agent, or employee of an Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice ' office where details relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the BusinessContracts are located.
Appears in 1 contract
Sources: Share Purchase Agreement (Lennox International Inc)
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 3.18 of Newco's Disclosure Letter contains a complete and accurate list as of the date hereof, and Newco has delivered or made available to Parent true and complete copies of:
(i) each Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one Company or more Acquired Companies with a fair market any of its Subsidiaries of an amount or value in excess of $50,000 500,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to Company or any one Person of its Subsidiaries of an amount or value in excess of $500,000;
(except (iiii) any each Applicable Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods Company or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value its Subsidiaries in excess of $50,000 500,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $500,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights or other intellectual property, including agreements with current or former employees, consultants or contractors regarding the appropriation or the non-disclosure of any Contract entered into in the Ordinary Course of Business for the purchase of services, goods, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction); (e) any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any collective bargaining or other agreement with any labor union; (g) any each joint venture, partnership or and other Applicable Contract (however named) involving a sharing of profits, losses, costs or liabilities by Company or any Acquired Company of its Subsidiaries with any other Person; ;
(hvii) any each Applicable Contract containing covenants that in any way purport to restrict the business activity of Company or any Acquired Company of its Subsidiaries or limit the freedom of Company or any Acquired Company of its Subsidiaries to engage in any line of business or to compete with any Person; ;
(iviii) any each Applicable Contract providing for payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney by Company or any of its Subsidiaries that is currently effective and outstanding;
(x) direct payments for goods and (y) Contracts each material Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; provides for an express undertaking by Company or any of its Subsidiaries to be responsible for consequential damages;
(jxi) any each Applicable Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 500,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xii) each written warranty, guaranty or other similar undertaking with respect to contractual performance extended by Company or any of its Subsidiaries other than in the aggregate); Ordinary Course of Business;
(nxiii) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person each material Applicable Contract to which Company is a party to such Contract the right to renegotiate containing a change of control provision; and
(xiv) each material amendment, supplement and modification (whether oral or require a reduction or increase written) in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing.
(b) Except as set forth in Part 3.18 of Newco's Disclosure Letter,
(i) neither Newco nor any Related Person of Newco (except for those Persons that will, immediately after the Effective Time, be Subsidiaries of the Surviving Corporation) has or may acquire any maintenance rights under, or service agreements relating has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the Assetsassets owned by, Company or any of its Subsidiaries; and
(sii) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of SellerCompany, no officer, director, agent, employee, consultant or contractor of Company or any of its Subsidiaries is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant or contractor to (A) engage in or continue any conduct, activity or practice relating to the business of Company or any of its Subsidiaries or (B) assign to Company any of its Subsidiaries or to any other party theretoPerson any rights to any invention, is improvement or discovery.
(c) Except as set forth in default under any Contract. Each ContractPart 3.18 of Newco's Disclosure Letter,
(i) constitutes a valid and binding obligation as of the Acquired Company party thereto anddate hereof, each Applicable Contract required to the Knowledge be identified in Part 3.18 of Seller, of each other party thereto; and (ii) Newco's Disclosure Letter is in full force and effect as and is valid and enforceable in accordance with its terms (except for those that will expire or terminate pursuant to the Acquired terms thereof between the date hereof and the Closing Date);
(ii) Company party theretoand each of its Subsidiaries are in material compliance with all applicable terms and requirements of each material Applicable Contract;
(iii) as of the date hereof, and, to the Knowledge of Seller, as to each other party thereto. Except Person that has or has had any obligation or liability under any material Applicable Contract is, and at all times has been, in material compliance with all applicable terms and requirements of such Applicable Contract;
(iv) as separately identified on SCHEDULE 5.15.2of the date hereof, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists with respect to which any member of the Company Knowledge Group has preliminarily concluded that such event or circumstance (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of of, or give Company, any Acquired Company of its Subsidiaries or any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any material Applicable Contract.; and
5.15.3. Except as set forth in SCHEDULE 5.15.3: (av) neither Seller Company nor any Related of its Subsidiaries has received from any other Person at any time any notice or other communication (whether oral (that is credible) or written) regarding any actual, alleged, possible or potential violation or breach of Seller (excluding or default under, any of the Acquired Companies) has any rights or obligations under any material Applicable Contract with an Acquired by Company or that relates to the Business of, or any of the Assets owned its Subsidiaries.
(d) There are no renegotiations of, attempts to renegotiate or used byoutstanding rights to renegotiate any amounts paid or payable to Company or any of its Subsidiaries under any current or completed material Contract with any Person and, an Acquired Company; and (b) to the Knowledge of SellerCompany, no officer, director, agent, or employee of an Acquired Company is bound by such Person has Threatened any Contract that purports to limit the ability of such officer, director, agent or employee, to renegotiation.
(ie) engage in or continue any conduct, activity, or practice The Applicable Contracts relating to the Business sale, design, manufacture or provision of the Acquired Company, products or (ii) assign to an Acquired services by Company or to any other Person any rights to any invention, improvement, or discovery of its Subsidiaries have been entered into in connection with the Business.the
Appears in 1 contract
Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Exhibit 5.10 contains a complete and accurate list of, and Seller has delivered to Buyer true and complete copies of:
(i) each Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one TBNG of an amount or more Acquired Companies with a fair market value in excess of $50,000 100,000;
(ii) each Contract that involves performance of services or delivery of goods or materials to any one Person TBNG of an amount or value in excess of $50,000;
(except (iiii) any each Contract that was not entered into in the Ordinary Course of Business for the sale and that involves expenditures or receipts of goods or materials by the Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value TBNG in excess of $50,000 50,000;
(iv) each lease agreement, license, installment and conditional sale agreement, and other Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $25,000 and with terms of less than one year);
(v) each licensing agreement or other Contract entered into in the Ordinary Course of Business for the purchase of serviceswith respect to patents, goodstrademarks, materials or inventory by the Acquired Company at market prices that is represented solely by a purchase order, an acknowledgement from the Acquired Companycopyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property;
(fvi) any collective bargaining or other agreement with any labor union; (g) any each joint venture, partnership or partnership, and other Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company TBNG with any other Person; ;
(hvii) any each Contract between or including TBNG and an Affiliate;
(viii) each Contract containing covenants that in any way purport to restrict the business activity of TBNG or any Acquired Company Affiliate of TBNG or limit the freedom of TBNG or any Acquired Company Affiliate of TBNG to engage in any line of business or to compete with any Person; ;
(iix) any Contract providing for payments to or each power of attorney granted by any Person based on sales, purchases or profits, other than TBNG that is currently effective;
(x) direct payments for goods each written warranty, guaranty, and (y) Contracts entered into or other similar undertaking with respect to contractual performance extended by TBNG other than in the Ordinary Course of Business with employees Business;
(xi) each amendment, supplement, and other sales personnel paying commissions modification (whether oral or bonuses; (jwritten) any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; (k) any Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project (it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 in the aggregate); (n) any sale and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets foregoing; and
(xii) the Contract between PTI and TBNG regarding sharing exploration and drilling expenses and sales proceeds
(b) Seller (and each Affiliate of Seller) does not have any rights under or any maintenance obligation or service agreements relating to any of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; liability under and (t) any other Contract which is material to the Acquired Companies, as a whole.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, to the Knowledge of Seller, any other party thereto, is in default under any Contract. Each Contract
(i) constitutes a valid and binding obligation of the Acquired Company party thereto and, to the Knowledge of Seller, of each other party thereto; and (ii) is in full force and effect as to the Acquired Company party thereto, and, to the Knowledge of Seller, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person does not have the right to declare a default require or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modifywill not become subject to, any Applicable Contract.
5.15.3. Except as set forth in SCHEDULE 5.15.3: (a) neither Seller nor any Related Person of Seller (excluding any of the Acquired Companies) has any rights or obligations under any Contract with an Acquired Company or that relates to the Business business of, or any of the Assets assets owned or used by, an Acquired Company; and TBNG;
(bc) to To the Knowledge knowledge of SellerSeller or TBNG, no officer, director, agent, employee, consultant, or employee contractor of an Acquired Company TBNG is bound by any Contract that purports to limit the ability of such officer, director, agent or agent, employee, consultant, or contractor to (i) engage in or continue any conduct, activity, or practice relating to the Business business of the Acquired CompanyTBNG, or (ii) assign to an Acquired Company TBNG or to any other Person any rights to any invention, improvement, or discovery discovery;
(d) With respect to each Contract identified or required to be identified in connection Exhibit 5.10, (i) the Contract is legal, valid, binding, enforceable and in full force and effect; (ii) the Contract will continue to be legal, valid, binding, enforceable and in full force and effect on identical terms following the consummation of the transactions contemplated hereby; (iii) no party is in breach or default, and no event has occurred which with notice or lapse of time would constitute a breach or default, or permit termination, modification or acceleration, under the BusinessContract; and (iv) no party has repudiated any provision of the Contract;
(e) TBNG has not given to or received from any other Person, at any time since January 1, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract; and
(f) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to TBNG under current or completed Contracts with any Person and, to the knowledge of TBNG, no such Person has made written demand for such renegotiation.
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Contracts; No Defaults. 5.15.1. Except as set forth in SCHEDULE 5.15.1 or as disclosed in this Agreement, no Acquired Company is a party to or bound by: (a) any Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and the Acquired Companies have delivered or made available to Buyer true and complete copies, of:
(i) each executory Applicable Contract for the purchase or sale of Real Property; (b) any Contract (or group of related or similar Contracts) that involves the future performance of services or delivery of goods or materials by one or more Acquired Companies with a fair market of an outstanding amount or value in excess of $50,000 other than purchase orders given or received by an Acquired Company for the purchase or sale of inventory in the Ordinary Course of Business of an outstanding amount or value of less than $200,000;
(ii) each executory Applicable Contract that involves performance of services or delivery of goods or materials to any one Person or more Acquired Companies of an outstanding amount or value in excess of $50,000 other than purchase orders given or received by an Acquired Company for the purchase or sale of inventory in the Ordinary Course of Business of an outstanding amount or value of less than $200,000;
(except (iiii) any each executory Applicable Contract that was not entered into in the Ordinary Course of Business for the sale since June 30, 1999, and that involves expenditures or receipts of goods one or materials by the more Acquired Company at market prices that is represented solely by a customer purchase order, an acknowledgment from the Acquired Company, or such other form documents as are ordinarily used to memorialize such a transaction or (ii) those Contracts that may be cancelled by the relevant Acquired Company within 30 days without significant penalty, payment or other expense or other significant impact on such Acquired Company); (c) any Contract that is an output, requirements or exclusive dealings contract (as such terms are used in Article 2 of the Uniform Commercial Code); (d) any Contract that requires or commits any Acquired Company to purchase services, goods, materials or inventory from any Person with a fair market value Companies in excess of $50,000 50,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other material Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or tangible personal property (except any Contract entered into in the Ordinary Course tangible personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of Business for the purchase less than $25,000 or with terms of services, goods, materials less than one year);
(v) each executory licensing agreement (excluding off-the-shelf software or inventory by the licenses requiring no further payment or payments to or from an Acquired Company at market prices that is represented solely by a purchase orderof more than $10,000 per year) and, an acknowledgement from to the Acquired CompanyKnowledge of Sellers, each other material Applicable Contract with respect to patents, trademarks, copyrights, or such other form documents as are ordinarily used to memorialize such a transaction); (e) intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any Guaranty or similar undertaking of the obligations of customers, suppliers, officers, directors, employees, Seller, Affiliates of Seller or others; Intellectual Property Assets;
(fvi) any each collective bargaining agreement and other material Applicable Contract to or other agreement with any labor union; union or other employee representative of a group of employees;
(gvii) any each joint venture, partnership or partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or liabilities by any Acquired Company with any other Person; ;
(hviii) any each Applicable Contract containing covenants that in any way purport to materially restrict the business activity of any Acquired Company or materially limit the freedom of any Acquired Company to engage in any line of business or to compete with any Person; ;
(iix) any each executory Applicable Contract (other than with employees) providing for the payment of commissions, royalties or other payments based on the volume of purchases or sales or magnitude of profits other than Applicable Contracts where the payment to or by any Person based on sales, purchases or profits, other an Acquired Company is less than $10,000 per year;
(x) direct payments for goods each power of attorney that is currently effective and outstanding excluding those given in connection with freight forwarding or intellectual property registration or filing;
(yxi) Contracts to the Knowledge of Sellers, each material Applicable Contract entered into other than in the Ordinary Course of Business with employees and other sales personnel paying commissions that contains or bonuses; (j) provides for an express undertaking by any Contract which provides for, or relates to, the incurrence by an Acquired Company of Indebtedness; to be responsible for consequential damages;
(kxii) any each executory Applicable Contract that was not entered into in the Ordinary Course of Business or that was entered into at a price or prices materially in excess of, or materially lower than, those currently available; (l) any employment Contract regarding employees performing services for the Business which is not terminable without significant penalty, payment or other expense or other significant impact on the relevant Acquired Company, at any time after the Closing (except for amounts earned or accrued prior to termination); (m) any Contract that involves any agreement or commitment for capital expenditures in excess of $250,000 for a single project 25,000;
(it being warranted that the commitments for all undisclosed Contracts for such projects do not exceed $500,000 xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the aggregate)Ordinary Course of Business; and
(nxiv) any sale each written amendment, supplement, and leaseback arrangements and installment purchase arrangements; (o) any management or operating agreements; (p) any Contracts containing modification in any case a specific clause or affected by a Legal Requirement giving any Person a party to such Contract the right to renegotiate or require a reduction or increase in prices or the repayment of any amount previously paid; (q) any agreement that restricts the maintenance or incurrence of Indebtedness, the sale or lease of property or distributions or transfers to shareholders (by dividend or otherwise); (r) any other Contract that materially and adversely affects the ownership or leasing respect of any of the Assets or foregoing.
(b) Each Seller represents that, except as set forth in Part 3.17(b) of the Disclosure Letter, such Seller (and any maintenance or service agreements relating Related Person of such Seller) has no rights under, and such Seller has not become subject to any obligation or liability under, any Contract listed on Part 3.17(a) of the Assets; (s) any Contract that involves an account receivable or note receivable of more than $100,000; and (t) any other Contract which is material to the Acquired Companies, as a wholeDisclosure Letter.
5.15.2. Seller has furnished or made available to Buyer complete and correct copies of the Contracts listed in SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1, as in effect on the date of this Agreement. Neither the Acquired Companies nor, (c) to the Knowledge of SellerSellers, any other party thereto, is except as set forth in default under any Contract. Each Contract
(iPart 3.17(c) constitutes a valid and binding obligation of the Acquired Company party thereto andDisclosure Letter, to each Contract identified in Part 3.17(a) of the Knowledge of Seller, of each other party thereto; and (ii) Disclosure Letter is in full force and effect as to the Acquired Company party thereto, and, to and is valid and enforceable in accordance with its terms.
(d) To the Knowledge of SellerSellers, as to each other party thereto. Except as separately identified on SCHEDULE 5.15.2, no notice to, filing or registration with, or Consent of, any Person is needed in order that the Contracts set forth on SCHEDULES 5.11.2, 5.12, 5.13.2 AND 5.15.1 continue in full force and effect (without breach by the Acquired Companies of, or giving any contractual party a right to terminate or modify such Contract or require the payment of any penalty or other amount in respect of such Contract as a result of the consummation of the Contemplated Transactions) following the consummation of the Contemplated Transactions. No event has occurred or, to the Knowledge of Seller, fact or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate or modify, any Applicable Contract.
5.15.3. Except except as set forth in SCHEDULE 5.15.3: (aPart 3.17(d) neither Seller nor any Related Person of Seller (excluding any of the Disclosure Letter:
(i) each Acquired CompaniesCompany is in full compliance with all material terms and requirements of each Contract listed on Part 3.17(a) of the Disclosure Schedule;
(ii) each other Person that has or had any rights obligation or obligations liability under any Contract listed on Part 3.17(a) of the Disclosure Schedule is in full compliance with an all material terms and requirements of such Contract; and
(iii) no Acquired Company has given to or that relates to the Business received from any other Person, at any time since June 30, 1999, any written notice or other written communication regarding any actual or potential material violation or breach of, or default under, any Contract listed on Part 3.17(a) of the Assets owned or used by, an Acquired Company; and Disclosure Schedule.
(be) to To the Knowledge of SellerSellers, other than with respect to the purchase of inventory in the Ordinary Course of Business, there are no officer, director, agent, attempts to renegotiate or employee of an outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company is bound by under current or completed material Contracts with any Contract that purports to limit the ability of such officer, director, agent or employee, to (i) engage in or continue any conduct, activity, or practice relating to the Business of the Acquired Company, or (ii) assign to an Acquired Company or to any other Person any rights to any invention, improvement, or discovery in connection with the BusinessPerson.
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