Contracts; No Defaults. (a) Part 4.16(a) of the Parent Disclosure Schedule contains a complete and accurate list, and copies, of: (i) each Contract that involves performance of services or delivery of goods, services or materials (in any 12-month period) by one or more Acquired Companies of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof; (ii) each Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies of an amount or value in excess of US $50,000; (iii) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies in excess of US $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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Software). (v) each licensing agreement or other Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts), consultants, or contractors regarding the appropriation or the nondisclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software); (vi) each joint venture, partnership, and any other Contracts involving a sharing of profits, losses, costs or Liabilities by any Acquired Company, with any other Person; (vii) 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; (viii) each Contract providing for commissions to or by any Person based on sales, purchases or profits, other than direct payments for goods; (ix) each Contract for capital expenditures in excess of US $50,000; (x) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company other than in the Ordinary Course of Business; (xi) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company; (xii) each written amendment, supplement, and modification in respect of any of the foregoing. (b) Except as set forth in Part 4.16(b) of the Parent Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effect. (c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure Schedule: (i) each Acquired Company is, and at anytime since December 31, 1999 has been, in compliance with all applicable terms and requirements of each such Contract under which such Acquired Company is party to; (ii) to Parent’s Knowledge, no event has occurred or circumstances exists that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)) will result in a violation or Breach of, or give any Acquired Company, or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or to cancel, terminate or modify any such Contracts (other than Contracts which are terminable without cause in accordance with their terms); and (iii) no Acquired Company has given to, or received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any such Contract. (d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000. (e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Evolving Systems Inc), Stock Purchase Agreement (Evolving Systems Inc)
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof25,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00025,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00025,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 25,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00025,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the 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 the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) No Seller (and no Related Person of any Acquired Company 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 the Company;; and
(xiiii) each written amendmentNo officer, supplementdirector, and modification in respect of any agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired The Company is, and at anytime all times since December 31September 30, 1999 1998 has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since September 30, 1998 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired The Company has not given to, to or received from any other Person, at anytime any time since December 31October 1, 19991995, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such ContractContract which could give rise to Damages in excess of $25,000.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any Material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are has been entered into in writing the Ordinary Course of Business and all and any amendments, settlements and modifications to any Contracts have been made entered into without the commission of any act alone or in writingconcert 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 2 contracts
Sources: Stock Purchase Agreement (Foster L B Co), Stock Purchase Agreement (Foster L B Co)
Contracts; No Defaults. (a) Part 4.16(aA. Schedule 3.17(a) of the Parent Company Disclosure Schedule contains a complete and accurate listlist (other than Customer License Agreements which are disclosed in Section 3.22.), and the Company has delivered to Merger Sub and Parent true and complete copies, of:
(i) each Each Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one the Company or more Acquired Companies the Subsidiary of an amount or value in excess of US Twenty-Five Thousand and No/100 Dollars ($50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof25,000.00);
(ii) each Each Contract that involves performance of services or delivery of goods or materials to one the Company or more Acquired Companies the Subsidiary of an amount or value in excess of US Twenty-Five Thousand and No/100 Dollars ($50,00025,000.00);
(iii) Except for customer Contracts and inventory and equipment purchase orders incurred in the Ordinary Course of Business, each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one the Company or more Acquired Companies the Subsidiary in excess of US Twenty-Five Thousand and No/100 Dollars ($50,00025,000.00);
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US Twenty-Five Thousand and No/100 Dollars ($50,000, 25,000.00) and with terms of less than one (21) Intellectual Property Assets disclosed in Part 4.20 year) of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Software).Company or the Subsidiary;
(v) each licensing Each collective bargaining agreement and other Contract to or with any labor union or other Contract with respect employee representative of a group of employees relating to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts), consultants, or contractors regarding the appropriation Company or the nondisclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Subsidiary;
(vi) each Each joint venture, partnership, and any other Contracts Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company or the Subsidiary with any other Person;
(vii) each Each Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or the Subsidiary or limit the freedom of any Acquired the Company or the Subsidiary to engage in any line of business or to compete with any Person;
(viii) each Each Contract (relating to the Company or the Subsidiary) providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each Each power of attorney relating to the Company or the Subsidiary that is currently effective and outstanding;
(x) Each Contract relating to the Company or the Subsidiary for capital expenditures in excess of US Twenty-Five Thousand and No/100 Dollars ($50,00025,000.00);
(xxi) each Each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company or the Subsidiary other than in the Ordinary Course of Business;
(xi) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;; and
(xii) each written Each amendment, supplement, and modification in respect of any of the foregoing.
(b) B. Except as set forth in Part 4.16(bSchedule 3.17(b) of the Parent Company Disclosure Schedule, to the Knowledge of the Company, no officer, director, or employee of the Company or the Subsidiary is bound by any Contract that purports to limit the ability of such officer, director or employee to (i) engage in or continue any conduct, activity, or practice relating to the business of the Company or any Subsidiary, as currently conducted or (ii) assign to the Company or any Subsidiary any rights to any invention, improvement, or discovery relating to the business of the Company or any Subsidiary.
C. Except as set forth in Schedule 3.17(c) of the Company Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(aSchedule 3.17(a) of the Parent Company Disclosure Schedule is in full force and effect, except as to matters or default which in the aggregate would not have a Company Material Adverse Effect.
(c) D. Except as set forth in Part 4.16(cSchedule 3.17(d) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Company Disclosure Schedule:
(i) The Company and each Acquired Company is, and at anytime since December 31, 1999 has been, Subsidiary is in full compliance with all applicable material terms and requirements of each such Contract under which Company or such Acquired Subsidiary has or had any obligation or liability or by which Company or such Subsidiary or any of the assets owned or used by Company or such Subsidiary is party toor was bound, except where the failure to comply with such terms and requirements would not have a Company Material Adverse Effect;
(ii) to Parent’s KnowledgeTo the Knowledge of the Company, each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is in full compliance with all material terms and requirements of such Contract;
(iii) To the Knowledge of the Company, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts material Contract, except for events or circumstances which are terminable without cause in accordance with their terms)the aggregate would not have a Company Material Adverse Effect; and
(iiiiv) no Acquired Neither the Company nor any Subsidiary has given to, to or received from any other Person, at anytime any time since December March 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such material Contract.
(d) E. There are no existing renegotiations with respect of or attempts to customer Contracts with respect to renegotiate any material amounts paid or payable to the Company or any Acquired Subsidiary under current or completed Contracts with any Person and the Company in excess of US $100,000has not received any written demand for such renegotiation.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 2 contracts
Sources: Merger Agreement (Medical Dynamics Inc), Merger Agreement (Medical Dynamics Inc)
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;100,000.
(ii) each Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00010,000:
(iii) each current Insurance Policy;
(iiiiv) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00010,000;
(ivv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,00010,000, (2) Intellectual Property Assets disclosed in Part 4.20 and having an aggregate value of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareall items having a value per item of less than $10,000 items not exceeding $50,000.00).;
(vvi) each licensing agreement or other Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with between the Company and current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vivii) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(viii) each joint venture, partnership, and any other Contracts Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiix) 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;
(viiix) each Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixxi) each power of attorney that is currently effective and outstanding;
(xii) each 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;
(xiii) each Contract for capital expenditures in excess of US $50,00010,000;
(xxiv) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixv) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing, except for change orders which will have no material adverse effect to the Company;.
(b) Except as set forth in Part 4.16(b) of the Parent Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effect.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(b) of the Disclosure Schedule:
(i) each Acquired Company is, and at anytime since December 31, 1999 has been, Letter is a work in compliance with all applicable terms and requirements progress schedule setting forth the total amount of each such Contract under which such Acquired Company is party to;
(ii) to Parent’s Knowledge, no event has occurred or circumstances exists that (with or without notice or contract and certain information as reflected in the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)) will result in a violation or Breach of, or give any Acquired Company, or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or to cancel, terminate or modify any such Contracts (other than Contracts which are terminable without cause in accordance with their terms); and
(iii) no Acquired Company has given to, or received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any such Contractcaptions thereto.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Barone Daren J), Stock Purchase Agreement (Oakhill Sportswear Corp /Ny/)
Contracts; No Defaults. (a) Part 4.16(aSchedule 3.16(a) of the Parent Disclosure Schedule contains a complete and accurate list, and Company has delivered to Parent true and complete copies, of:
(i) each Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one Company or more Acquired Companies a Subsidiary of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof25,000;
(ii) each Contract that involves performance of services or delivery of goods or materials to one Company or more Acquired Companies a Subsidiary of an amount or value in excess of US $50,00025,000;
(iii) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one Company or more Acquired Companies a Subsidiary in excess of US $50,00025,000;
(iv) each lease 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 by Company or a Subsidiary (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 25,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(v) each licensing agreement or other Contract with respect to which Company or a Subsidiary is a party that pertains to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)intellectual property;
(vi) each joint venture, partnership, and any other Contracts Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, Company or a Subsidiary with any other Person;
(vii) each Contract containing covenants that in any way purport to restrict the business activity of Company or a Subsidiary or any Acquired Affiliate of a Company or limit the freedom of Company or a Subsidiary or any Acquired Affiliate of a Company to engage in any line of business or to compete with any Person;
(viii) each Contract providing for commissions payments to or by any Person Company or a Subsidiary based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each power of attorney binding on Company or any Subsidiary that is currently effective and outstanding;
(x) each Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Company or a Subsidiary to be responsible for consequential damages;
(xi) each Contract for capital expenditures by Company or a Subsidiary in excess of US $50,00025,000;
(xxii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company or a Subsidiary other than in the Ordinary Course of Business;
(xixiii) each Contract with agreement or contract, whether written or verbal, that is a talent or programming agreement or contract or in any Related Person way obligates Company to pay any royalty, residual, license fee or other similar payment in respect of any Acquired Company that relates to the business ofthird party’s literary, artistic, trademark, copyright, music performance, master use, synchronization or any of the assets owned other similar intellectual property rights or used bytheir publicity, any Acquired Company;privacy or publishing or other similar intellectual property rights; and
(xiixiv) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(bSchedule 3.16(b), no officer, director, or employee of Company or any Subsidiary is bound by any Contract that purports to limit the ability of such Person to (A) engage in or continue any conduct, activity, or practice relating to the business of the Parent Disclosure ScheduleCompany, each Contract identified or required (B) assign to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effectCompany or any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure ScheduleSchedule 3.16(c), with respect to each Contract identified listed or required to be identified listed in Part 4.16(aSchedule 3.16(a) of the Disclosure Schedule:is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Schedule 3.16(d):
(i) each Acquired of Company is, and at anytime since December 31, 1999 each Subsidiary is and has been, been in full compliance with all applicable terms and requirements of each such Contract under which such Acquired Company is party tolisted or required to be listed in Schedule 3.16(a);
(ii) each other party to Parenteach Contract listed or required to be listed in Schedule 3.16(a) is, to Company’s Knowledge, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, Company or any a Subsidiary or other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause Contract listed or required to be listed in accordance with their termsSchedule 3.16(a); and
(iiiiv) no Acquired neither Company nor a Subsidiary has given to, to or received from any other Person, at anytime any time since December 31June 30, 1999, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any Contract listed or required to be listed in Schedule 3.16(a), except for notices of violations, breaches or defaults, the results of which would not result in the ability for the other party to such Contract.
(d) There are no existing renegotiations with respect Contract to customer Contracts with respect to amounts paid exercise a right or payable to remedy that could have a material adverse effect on Company or any Acquired Company in excess of US $100,000Subsidiary.
(e) To ParentCompany’s Knowledge, all there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to Company or any Subsidiary or with respect to the business of Company or a Subsidiary under current or completed Contracts which with any Acquired 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 Company and the 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, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.
(g) Company is not a party to are any Contract with any other Person, nor involved in writing and all and any amendmentsdiscussions or other relations with any other Person, settlements and modifications that could give rise to any Contracts have been made in writingliability on the part of Parent to such other Person by reason of Company considering, entering into, consummating or performing the Contemplated Transactions or any portion thereof.
Appears in 2 contracts
Sources: Merger Agreement (Summit America Television Inc /Tn/), Merger Agreement (Scripps E W Co /De)
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have heretofore delivered or made available to Buyer true and complete copies, of:
(i) each Company Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof100,000;
(ii) each Company Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,000100,000;
(iii) each Company Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,000;
(iv) each lease lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 50,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(v) each licensing agreement or other Company Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Company Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Company Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) each Company 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;
(viiiix) each Company Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney affecting the Company that is currently effective and outstanding;
(xi) each Company 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;
(xii) each Company Contract for capital expenditures in excess of US $50,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by the Company; and
(other than with xiv) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts (including the parties to Intellectual Property Assets disclosed the Contracts, the amount of the remaining commitment of the Company under the Contracts) and any oral modifications of the Contracts.
(b) Except as set forth in Part 4.20 3.17(b) of the Parent Disclosure Schedule) extended by any Acquired Company other than in the Ordinary Course of Business;Letter:
(xii) each Contract with any To the Knowledge of the Company or Original Shareholders, none of the Sellers (and no Related Person of any Acquired Company 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 business of, or any of the assets owned or used by, any Acquired the Company;; and
(xiiii) each written amendment, supplement, and modification in respect of any to the Knowledge of the foregoingCompany or Original Shareholders, 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.
(bc) Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31, 1999 the date of the respective Contracts (including any Contracts which have been superseded by the present Contracts) has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound except where noncompliance will not have a Material Adverse Effect;
(ii) to Parent’s Knowledgethe Knowledge of the Company or Original Shareholders, each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since January 1, 1998, has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any Company Contract except where the consequences of such Contracts (other than Contracts which are terminable without cause in accordance with their terms)event will not have a Material Adverse Effect; and
(iiiiv) no Acquired Company the Company, since the date of the respective Contracts (including any Contracts which have been superseded by the present Contracts), has not given to, or to nor received from any other Person, at anytime since December 31, 1999, Person any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Person and, to the Knowledge of the Company in excess of US $100,000or Original Shareholders, no such Person has made written demand for such renegotiation.
(ef) 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 Parent’s the best of the Original Shareholders' and the Company's Knowledge, all such Contracts can be completed at a profit, within the time specified therein, utilizing only personnel now employed by and assets now owned by the Company.
(g) Except as set forth in Part 3.17(g) of the Disclosure Letter:
(A) the Company has complied with all material terms and conditions of each Government Contract or Government Subcontract, (B) the Company has complied in all material respects with all requirements for 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 material respects as of their effective date and the Company has complied in all material respects with all such representations and certifications;
(ii) (A) neither the U.S. Government nor any 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 the Administrative Contracting Officer or the Defense Contract Audit Agency, has been disallowed by the U.S. Government, or has been or, to the Knowledge of the Company or Original Shareholders, 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;
(iii) (A) to the Knowledge of Company or Original Shareholders, neither the Company nor any of its directors, officers, employees, 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 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) to the Knowledge of Company or Original Shareholders, 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 Part 3.17(g) of the Disclosure Letter lists each Government Contract or Government Subcontract which is currently under audit by any Acquired Company Governmental Body or any other person that is a party to such Government Contract or Government Subcontract;
(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 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 Company, no payment has been made by the Company or by any Person on behalf of the Company in connection with any Governmental Contract or Governmental Subcontract in violation of applicable procurement Legal Requirements or in violation of, or requiring disclosure pursuant to, the Foreign Corrupt Practices Act, and the Company's cost accounting and procurement systems and the associated entries reflected in the Company's financial records with respect to the Government Contracts and Government Subcontracts are in writing and compliance in all and any amendments, settlements and modifications to any Contracts have been made in writingmaterial respects with all Legal Requirements.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Edo Corp), Stock Purchase Agreement (Edo Corp)
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have heretofore delivered or made available to Buyer true and complete copies, of:
(i) each Company Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof100,000;
(ii) each Company Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,000100,000;
(iii) each Company Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,000;
(iv) each lease lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 50,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(v) each licensing agreement or other Company Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Company Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Company Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) each Company 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;
(viiiix) each Company Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney affecting the Company that is currently effective and outstanding;
(xi) each Company 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;
(xii) each Company Contract for capital expenditures in excess of US $50,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company other than in the Ordinary Course of BusinessCompany;
(xixiv) each Company Contract with that involves a bank loan, line of credit or other agreement regarding the borrowing of money; and
(xv) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(a) of the Disclosure Letter sets forth, where applicable, 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 any oral modifications of such Contracts.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) none of the Sellers (and no Related Person of any Acquired Company 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 business of, or any of the assets owned or used by, any Acquired the Company;; and
(xiiii) each written amendmentno Key Personnel, supplementor to Sellers' Knowledge, and modification in respect of any no other agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except To Sellers' Knowledge, except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31, 1999 the date of the respective Contracts (including any Contracts which have been superseded by the present Contracts) (A) has been, in full compliance with all applicable material 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, (B) has complied in all respects with all requirements for all Legal Requirements pertaining to each Contract, and (C) any representations and certifications executed, acknowledged or set forth in or pertaining to each Contract were complete and correct in all material respects as of their effective date, except, in each case, where noncompliance will not have a Material Adverse Effect;
(ii) to Sellers' Knowledge, each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since March 30, 1987, has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired Company is party toContract;
(iiiii) to Parent’s Knowledge, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, the contractual 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 modify, any Company Contract except where the consequences of such Contracts (other than Contracts which are terminable without cause in accordance with their terms)event will not have a Material Adverse Effect; and
(iiiiv) no Acquired Company the Company, since the date of the respective Contracts (including any Contracts which have been superseded by the present Contracts), has not given to, or to nor received from any other Person, at anytime since December 31, 1999, Person any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, or outstanding rights to customer Contracts with respect renegotiate any, or to Seller's Knowledge attempts to renegotiate, material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiations.
(ef) 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 to Sellers' Knowledge would be in violation of any Legal Requirement. To Parent’s Sellers' Knowledge, all such Contracts can be completed at a profit, within the time specified therein, utilizing only personnel now employed by and assets now owned by the Company.
(g) Except as set forth in Part 3.17(g) of the Disclosure Letter:
(A) the Company has complied with all material terms and conditions of each Government Contract or Government Subcontract, and (B) 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 or as subsequently modified prior to the Effective Date and the Company has complied in all material respects with all such representations and certifications;
(ii) (A) neither the U.S. Government nor any 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 the Administrative Contracting Officer or the Defense Contract Audit Agency, has been disallowed by the U.S. Government, or has been or, to Sellers' Knowledge, 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 to Sellers' Knowledge, has any claim been made to withhold or set off money, and to Sellers' Knowledge, the Company is entitled to all progress payments received with respect thereto;
(A) To Sellers' Knowledge, neither the Company nor any of its directors, officers or employees or, to 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) to Sellers' Knowledge, 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) to Sellers' Knowledge, 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 Part 3.17(g) of the Disclosure Letter lists each Government Contract or Government Subcontract which is currently under audit by any Acquired Company Governmental Body or any other person that is a party to such Government Contract or Government Subcontract;
(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 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 Company, no payment has been made by the Company or by any Person on behalf of the Company in connection with any Governmental Contract or Governmental Subcontract in violation of applicable procurement Legal Requirements or in violation of, or requiring disclosure pursuant to, the Foreign Corrupt Practices Act, and the Company's cost accounting and procurement systems and the associated entries reflected in the Company's financial records with respect to the Government Contracts and Government Subcontracts are in writing compliance in all material respects with all Legal Requirements.
(h) The EDS Contract referenced in Part 3.17(g)(i) of the Disclosure Letter was not granted because of any characterization of the Company as a "Small Disadvantaged Business," and all and such contract was not part of any amendments, settlements and modifications to any Contracts have been made in writingset-aside for Small Disadvantaged Businesses.
Appears in 1 contract
Sources: Stock Purchase Agreement (Edo Corp)
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof25,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00025,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00025,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00025,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b3.17(b) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(c) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31September 30, 1999 1997 has been, in full compliance with all applicable material 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 Sellers' Knowledge, each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since September 30, 1997 has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired Company is party toContract;
(iiiii) to Parent’s Knowledge, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31September 30, 19991997, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Person that would have a material adverse effect on the business of the Company in excess and, to the Knowledge of US $100,000Sellers and the Company, no such Person has made written demand for such renegotiation.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Morrison Health Care Inc)
Contracts; No Defaults. (a) Part 4.16(a3.15(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and the Company have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Business of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof5,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Business of an amount or value in excess of US $50,0005,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Business in excess of US $50,0005,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 5,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company the Business or limit the freedom of any Acquired Company the Business to engage in any line of business or to compete with any Person;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,0005,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b3.15(b) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.15(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.15(c) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime since December 31, 1999 all times has been, in material compliance with all applicable terms and requirements of each such Contract under which such Acquired Company it has or had any obligation or liability or by which it or any of the assets owned or used by it is party toor was bound, and any material non-compliance has been cured;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the 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, and any previous non-compliance has been cured;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime since December 31, 1999any time, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess Person and, to the Knowledge of US $100,000the Company, no such Person has made written demand for such renegotiation.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Morrison Health Care Inc)
Contracts; No Defaults. (a) Part 4.16(aSection 3.16(a) of the Parent Disclosure Schedule contains a complete and accurate list, and Seller has delivered to TKOG true and complete copies, of:
(i) each Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect 50,000 or that is a master agreement for the performance of services or delivery of goods or materials by the Company from time to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereoftime over an indefinite period of time;
(ii) each Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,000;
(iii) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies in excess of US $50,000;
(iv) each lease agreementlease, 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments with unfulfilled obligations in excess of less than US $50,000, ;
(2iv) Intellectual Property Assets disclosed each lease agreement with respect to the vehicles used by the Company in Part 4.20 the conduct of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Software).its business;
(v) each licensing agreement or other Contract with respect to patents, trademarks, copyrights, trade secrets or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, consultants or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)intellectual property;
(vi) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, partnership and any other Contracts Contract involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other PersonPerson or requiring the Company to make any capital contribution;
(viiviii) each Contract containing covenants a covenant that in any way purport purports to restrict the business activity of any Acquired the Company or limit Seller or limits the freedom of any Acquired the Company or Seller to engage in any line of business or to compete with any Person;
(viii) each Contract providing for commissions to Person or by hire any Person based on sales, purchases or profits, other than direct payments for goodscontaining any change of control provision;
(ix) each employment agreement;
(x) each power of attorney that is currently effective and outstanding; and
(xi) each Contract for capital expenditures in excess of US $50,000;25,000.
(xb) each written warrantyExcept as set forth in Section 3.16(b) of the Disclosure Schedule, guarantySeller has not or may not acquire any rights under, and Seller has not or other similar undertaking with respect may not become subject to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company other than in the Ordinary Course of Business;
(xi) each obligation or liability under, any Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired the Company;
(xii) each written amendment, supplement, and modification in respect of any of the foregoing.
(bc) Except as set forth in Part 4.16(bSection 3.16(c) of the Parent Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(aSection 3.16(a) of the Parent Disclosure Schedule is in full force and effecteffect and is valid and enforceable against the Company and, to Seller's Knowledge, against the other parties thereto, in accordance with its terms, subject to limitations imposed by bankruptcy, insolvency, reorganization or other laws affecting the rights of creditors generally and subject to general equity principles and to limitations on availability of equitable relief, including specific performance. The Company is not aware, and has not been informed, of any bankruptcy proceedings pending which would affect the enforceability of the Contracts.
(cd) Except for the limitations set forth in Section 3.16(c) above and except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(aSection 3.16(d) of the Disclosure Schedule:
(i) each Acquired the Company is, and at anytime since December 31, 1999 has been, is in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Seller's Knowledge, each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is in full compliance with all applicable terms and requirements of such Contract; and
(iii) no event has occurred or circumstances and, to Seller's Knowledge, no circumstance exists that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)or both) will may result in a violation or Breach of, or give breach of any Acquired Company, or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or to cancel, terminate or modify any such Contracts (other than Contracts which are terminable without cause in accordance with their terms); and
(iii) no Acquired Company has given to, or received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Sources: Merger Agreement (Kroll O Gara Co)
Contracts; No Defaults. (a) Part 4.16(a3.16(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and the Company has delivered to Parent true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof20,000 per annum;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00020,000 per annum;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00010,000 per annum;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 20,000 per annum and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)Employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other Employee representative of a group of Employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney executed by the Company that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00010,000 per annum;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b) of the Parent Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effect.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure Schedule:
(i) each Acquired Company is, and at anytime since December 31, 1999 has been, in compliance with all applicable terms and requirements of each such Contract under which such Acquired Company is party to;
(ii) to Parent’s Knowledge, no event has occurred or circumstances exists that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)) will result in a violation or Breach of, or give any Acquired Company, or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or to cancel, terminate or modify any such Contracts (other than Contracts which are terminable without cause in accordance with their terms); and
(iii) no Acquired Company has given to, or received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof10,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00010,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies in excess of US $50,000Business;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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 the Company or any Acquired Related Person of the Company to engage in any line of business or to compete with any Person;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00010,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the date thereof, 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 3.17(b) of the Disclosure Letter:
(i) none of the Sellers (and no Related Person of any Acquired Company Seller) have or may acquire any rights under, and none of the Sellers 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 the Company;; and
(xiiii) each written amendmentto the Sellers' and the Company's Knowledge, supplementno officer, and modification in respect of any director, agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31September 1, 1999 1996, has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since September 1, 1996, has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31September 1, 19991996, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There Except as set forth in Part 3.17 (e) of the Disclosure Letter, there are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess Person and, to the Knowledge of US $100,000Sellers and the Company, no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
(g) Except as set forth in Part 3.17(g) of the Disclosure Letter, each Applicable Contract required to be listed in Part 3.17(a) of the Disclosure Letter pursuant to clause (ix) of Section 3.17(a) is terminable by the Company without premium or penalty upon not more than sixty (60) days prior written notice by the Company to the other party.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a5.17(a) of the Parent Buyer Disclosure Schedule Letter contains a complete and accurate list, and Buyer has delivered to Shareholders true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies Buyer of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof75,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies Buyer of an amount or value in excess of US $50,00075,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies Buyer in excess of US $50,00075,000;
(iv) each lease lease, rental or occupancy agreement, license, installment and conditional sale agreement, 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 75,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, copyrights or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, consultants or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, partnership and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs or Liabilities liabilities by any Acquired Company, Buyer with any other Person;
(viiviii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of Buyer or any Acquired Company Affiliate of Buyer or limit the freedom of Buyer or any Acquired Company Affiliate of Buyer to engage in any line of business or to compete with any Person;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Buyer to be responsible for consequential damages;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00075,000;
(xxiii) each written warranty, guaranty, guaranty and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company Buyer other than in the Ordinary Course of Business;; and
(xixiv) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, supplement and modification (whether oral or written) in respect of any of the foregoing.
(a) of the Buyer Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of Buyer under the Contracts, and where details relating to the Contracts are located.
(b) Except as set forth in Part 4.16(b5.17(b) of the Parent Buyer Disclosure ScheduleLetter, to the Knowledge of Buyer, no officer, director, agent, employee, consultant, or contractor of Buyer is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant or contractor to (i) engage in or continue any conduct, activity or practice relating to the business of Buyer, or (ii) assign to Buyer or to any other Person any rights to any invention, improvement or discovery.
(c) Except as set forth in Part 5.17(c) of the Buyer Disclosure Letter, each Contract identified or required to be identified in Part 4.16(a5.17(a) of the Parent Buyer Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c5.17(d) of the Parent Buyer Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure ScheduleLetter:
(i) each Acquired Company Buyer is, and at anytime all times since December 31July 1, 1999 1996, has been, in full compliance with all applicable terms and requirements of each such material Contract under which such Acquired Company Buyer has or had any obligation or liability or by which Buyer or any of the assets owned or used by Buyer is party toor was bound;
(ii) to Parent’s Knowledgethe Knowledge of Buyer, each other Person that has or had any obligation or liability under any Contract under which Buyer has or had any rights is, and at all times since July 1, 1996, has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, Buyer or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired Company Buyer has not given to, to or received from any other Person, at anytime any time since December 31July 1, 19991996, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, possible or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to Buyer under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired Company is a party to are in writing and all and any amendmentsdesign, settlements and modifications to any Contracts manufacture or provision of products or services by Buyer have been made entered into in writingthe 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.
Appears in 1 contract
Sources: Reorganization Agreement (Pacific Coast Apparel Co Inc)
Contracts; No Defaults. (a) 3.18.1 Part 4.16(a) 3.18.1 contains an accurate and complete list as of the Parent Disclosure Schedule contains a complete and accurate listdate of this Agreement, and Seller has made available to Buyer upon Buyer's request accurate and complete copies, of:
(i) each Seller Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies Seller of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof10,000;
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies Seller of an amount or value in excess of US $50,00010,000;
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies Seller in excess of US $50,00010,000;
(iv) each lease agreement, license, installment and conditional sale agreement, and other Seller Contract affecting the ownership of, leasing of, title to, use of, of or any leasehold or other interest in, in any real or personal property (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000 and with a term of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(v) each licensing agreement Seller Contract of an amount or other Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees value in excess of $10,000 (other than their employment contracts), consultants, or contractors regarding the appropriation or the nondisclosure of any of the Intellectual Property Assets (except for the following: (1however named) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software);
(vi) each joint venture, partnership, and any other Contracts involving a sharing of profits, losses, costs or Liabilities liabilities by any Acquired Company, Seller with any Person other Personthan an employee of Seller;
(viivi) 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;
(viiivii) each Seller Contract providing for commissions payments to or by any Person based on sales, purchases or profits, other than direct payments for goodsgoods or services;
(viii) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller to be responsible for consequential damages;
(ix) each Seller Contract for capital expenditures in excess of US $50,00010,000;
(x) each Seller Contract not denominated in U.S. dollars;
(xi) each written warranty, guaranty, and or guaranty and/or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company Seller other than in the Ordinary Course of Business;
(xi) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;; and
(xii) each written amendment, supplement, supplement and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set 3.18.2 Part 3.18.2 sets forth in Part 4.16(b) reasonably complete details concerning such Seller Contracts, including the parties to the Contracts, the amount of the Parent Disclosure Scheduleremaining commitment of Seller under the Contracts, each if applicable, as of May 19, 2004.
3.18.3 Equityholder has not or will not acquire any rights under, and Equityholder has not and will not become subject to any obligation or liability under, any Contract that relates to the business of Seller or any of the Assets.
3.18.4 Each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule 3.18.1 and which is an Assumed Contract is in full force and effect.
(c) effect and to the Knowledge of Seller is valid and enforceable in accordance with its terms. Except as set forth in Part 4.16(c) of to the Parent Disclosure Schedule, with respect to each Contract identified or required to be extent identified in Part 4.16(a) 3.2.3, each Assumed Contract is assignable by Seller to Buyer without the consent of the Disclosure Schedule:any other Person; and
(i) each Acquired Company 3.18.5 Seller is, and at anytime all times since December 31the incorporation of Seller, 1999 has been, in material compliance with all applicable terms and requirements of each Assumed Contract and, with respect thereto:
(i) to the Knowledge of Seller, each other Person that has or had any obligation or liability under any Assumed Contract is not currently in Breach of such Contract under which such Acquired Company is party toContract;
(ii) to Parent’s Knowledgethe Knowledge of Seller, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)time) will may result in a violation or Breach of, or give any Acquired Company, Seller or any other Person party to such Contracts, 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 modify, any such Contracts Assumed Contract;
(other than Contracts which are terminable iii) to the Knowledge of Seller, no event has occurred or circumstance exists under or by virtue of any Contract that (with or without notice or lapse of time) would cause in accordance with their terms)the creation of any Encumbrance affecting any of the Assets; and
(iiiiv) no Acquired Company Seller has not given to, to or received from any other Person, at anytime any time since December 31, 1999its incorporation, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, possible or potential violation or Breach of, or default underunder any Assumed Contract which notice has not been withdrawn or such actual, any such Contractalleged, possible or potential violation or Breach has not been fully cured by Seller.
(d) 3.18.6 There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Seller under current Contracts with any Acquired Company in excess of US $100,000Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation.
(e) To Parent’s Knowledge3.18.7 Each Contract relating to the sale, all Contracts which design, 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 Acquired Company act alone or in concert with any other Person, or any consideration having been paid or promised, that is a party to are or would be in writing and all and violation of any amendments, settlements and modifications to any Contracts have been made in writingmaterial Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Seller have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof100,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,000100,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,000100,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 100,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,000100,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the 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 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 Seller) has or may acquire any Acquired Company 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 assets owned or used by, any Acquired the Company;; and
(xiiii) each written amendmentno officer, supplementdirector, and modification in respect of any agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31January 1, 1999 2005, has been, in full compliance with all applicable terms and requirements of each such Contract under which the Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by the Company is party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since January 1, 2005, has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31January 1, 19992005, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess Person and, to the Knowledge of US $100,000Seller and the Company, no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Sources: Stock Purchase Agreement (Allis Chalmers Energy Inc.)
Contracts; No Defaults. (a) Part 4.16(a3.15(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and /or Seller has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof10,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00010,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00010,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Acquired Company Affiliate or limit the freedom of the Company or any Acquired Company Affiliate to engage in any line of business or to compete with any Person;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) each Applicable Contract for capital expenditures in excess of US $50,000;
(x) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company other than in the Ordinary Course of Business;
(xi) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company10,000;
(xii) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b3.15(b) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.15(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.15(c) of the Disclosure ScheduleLetter, to the Knowledge of Seller:
(i) each Acquired the Company is, and at anytime all times since December 31January 1, 1999 2002 has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired the Company has or had any obligation or liability or by which the Company or any of the assets owned or used by it is party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since January 1, 2002 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31January 1, 19992002, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(e) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof15,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00015,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00015,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 15,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each Contract goods and sales commission arrangements for capital expenditures in excess of US $50,000employees;
(x) each written warranty, guaranty, power of attorney granted by the Company that is currently effective and or other similar undertaking with respect to contractual performance outstanding;
(other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedulexi) extended by any Acquired Company each Applicable Contract entered into other than in the Ordinary Course of Business;
(xi) each Contract with any Related Person of any Acquired Company Business that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b) of the Parent Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effect.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure Schedule:
(i) each Acquired Company is, and at anytime since December 31, 1999 has been, in compliance with all applicable terms and requirements of each such Contract under which such Acquired Company is party to;
(ii) to Parent’s Knowledge, no event has occurred or circumstances exists that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)) will result in a violation or Breach of, or give any Acquired Company, or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or to cancel, terminate or modify any such Contracts (other than Contracts which are terminable without cause in accordance with their terms); and
(iii) no Acquired Company has given to, or received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.contains or
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a) Section 3.17 of the Parent Disclosure Schedule contains a complete and accurate list, and the Parent Seller has delivered to the Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;10,000.
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,000;10,000.
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies by the Company in excess of US $50,000;10,000.
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 1,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, service marks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Company’s Proprietary Rights;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) each Applicable Contract entered into other than in the Ordinary Course of Business that contain an express undertaking which legally obligates the Company to pay consequential damages;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00010,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking undertaking, with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) by any third party, extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b) of the Parent Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effect.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure Schedule:
(i) each Acquired Company is, and at anytime since December 31, 1999 has been, in compliance with all applicable terms and requirements of each such Contract under which such Acquired Company is party to;
(ii) to Parent’s Knowledge, no event has occurred or circumstances exists that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)) will result in a violation or Breach of, or give any Acquired Company, or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or to cancel, terminate or modify any such Contracts (other than Contracts which are terminable without cause in accordance with their terms); and
(iii) no Acquired Company has given to, or received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Measurement Specialties Inc)
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter (itemized by romanette subsection) contains a complete and accurate list, and Seller has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof10,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00010,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00010,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00010,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the date and parties to the Contracts, and a summary of the nature of the Contract.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) Seller (and no Related Person of Seller) has no and may acquire no rights under, and Seller has or may become subject to no obligation or liability under, any Acquired Company Contract that relates to the business of, or any of the assets owned or used by, any Acquired the Company;; and
(xiiii) each written amendmentto Seller’s Knowledge, supplementno officer, and modification in respect of any director, agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b) of the Parent Disclosure Schedule, each Each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms, except as such enforceability may be limited by equitable principles and by applicable bankruptcy, insolvency, reorganization, arrangement, moratorium or similar laws relating to or affecting the rights of creditors generally.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31January 1, 1999 2001 has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since January 1, 2001 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, or to nor received from any other Person, at anytime any time since December 31January 1, 19992001, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Contracts; No Defaults. (a1) Part 4.16(a) 3.1.16 of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(ia) each Applicable Contract that involves performance of services or delivery of goods, services or materials (in any 12-month period) by one or more Acquired Companies of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;
(ii) each Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies of an amount or value in excess of US $50,000;
(iii) each Contract that was not entered into in the Ordinary Course of Business and that involves involving expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00025,000;
(ivb) each lease lease, rental or occupancy agreement, license, installment and conditional sale agreement, agreement and other Applicable Contract affecting the ownership of, leasing of, title to, use of, of or any leasehold or other interest in, any real or personal property (except for the following: (1) personal property leases and installment and conditional sales agreements and other applicable contracts having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 25,000; and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(vc) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, copyrights or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, consultants or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vid) each joint venture, partnership, partnership and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viie) each Applicable Contract containing covenants that in any way purport to restrict materially restricts 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;
(viiif) each Applicable Contract providing for commissions material payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ixg) each Contract for capital expenditures in excess power of US $50,000attorney by or affecting the Company that is currently effective and outstanding;
(xh) 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;
(i) each written warranty, guaranty, guaranty and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xij) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, supplement and modification (whether oral or written) in respect of any of the foregoing.
(b2) Except as set forth in Part 4.16(b) of the Parent Disclosure Schedule, each Each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effect.
(c) Except as set forth effect and enforceable in Part 4.16(c) accordance with its terms against the Company and, to the Knowledge of the Parent Disclosure ScheduleCompany, with respect to each Contract identified the other respective parties thereto, except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, or required to be identified in Part 4.16(a) other laws of general application affecting enforcement of creditors' rights generally or by general principles of equity. The Company has not received notice of cancellation on the part of the Disclosure Schedule:
other parties to any Contract that constitutes or would constitute (iwith notice or lapse of time or both) each Acquired a breach or would cause or permit acceleration of any obligation of the Company isor any of its subsidiaries thereunder. Each Contract was entered into in the Ordinary Course of Business, and at anytime since December 31, 1999 has been, in compliance consistent with all applicable terms and requirements of each such Contract under which such Acquired Company is party to;
(ii) to Parent’s Knowledgepast practice. To the Company's knowledge, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 such Contracts (other than Contracts which are terminable without cause in accordance with their terms); and
(iii) no Acquired Company has given to, or received from any other Person, at anytime since December 31, 1999modify, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any such ContractApplicable Contract and would be reasonably expected to have a material adverse effect.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a) To the best of the Parent Disclosure Schedule contains a Company’s and the Company Shareholder’s Knowledge, the Company or the Company Shareholder has made available to ▇▇▇▇▇▇▇▇ true and complete and accurate list, and copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof5,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,0005,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,0005,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 5,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,0005,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) To the best of the Company’s or the Company Shareholder’s Knowledge:
(i) neither the Company, the Company Shareholder nor any Related Person of either has or may acquire any Acquired rights under, and neither the Company nor the Company Shareholder has or will 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 the Company;; and
(xiiii) each written amendment, supplement, and modification in respect of any To the best of the foregoingCompany’s or the Company Shareholder’s Knowledge, 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.
(bc) Except as set forth in Part 4.16(b) To the best of the Parent Disclosure ScheduleCompany’s or the Company Shareholder’s Knowledge, each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule Company is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) To the best of the Parent Disclosure Schedule, with respect to each Contract identified Company’s or required to be identified in Part 4.16(a) of the Disclosure ScheduleCompany Shareholder’s Knowledge:
(i) each Acquired the Company is, and at anytime since December 31, 1999 has been, is in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledge, each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime since December 31, 1999, Person any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parentthe best of the Company Shareholder’s Knowledge, all 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 which with any Acquired Person and no such Person has made written demand for such renegotiation.
(f) To the best of the Company is a party Shareholder’s Knowledge, the Contracts relating to are in writing and all and any amendmentsthe sale, settlements and modifications to any Contracts design, manufacture, or provision of products or services by the Company have been made entered into in writingthe 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and the Company has delivered to UNIT true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof10,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00010,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00010,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, limited liability company, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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 the Company or any Acquired Related Person of the Company to engage in any line of business or to compete with any Person;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00010,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the 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 the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) No Shareholders (and no Related Person of any Acquired Company Shareholder) have or may acquire any rights under, and no Shareholders have 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 by the Company;; and
(xiiii) each written amendment, supplement, and modification in respect of any to the Knowledge of the foregoingShareholders 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 Person any rights to any invention, improvement, or discovery.
(bc) Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December May 31, 1999 1997 has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgethe Knowledge of the Company each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since May 31, 1997 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of the Company no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December May 31, 19991997, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Sources: Merger Agreement (Unit Corp)
Contracts; No Defaults. (a) Part 4.16(aSection 3.16(a) of the Parent Disclosure Schedule contains a complete and accurate listlist in all material respects, and Shareholder has delivered to TOG true, complete and correct copies, of:
(i) each Contract that involves performance of services or delivery of goods, services goods or materials (in by any 12-month period) by one or more Acquired Companies Company of an amount or value in excess of US Twenty Five Thousand Dollars ($50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof25,000);
(ii) each Contract that involves performance of services or delivery of goods or materials to one or more any Acquired Companies Company of an amount or value in excess of US Twenty Five Thousand Dollars ($50,00025,000);
(iii) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies in excess of US $50,000;
(iv) each lease agreementlease, 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 that involves the payment by or to any Acquired Company in excess of Twenty Five Thousand Dollars (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Software25,000).;
(viv) each licensing agreement or other Contract of any Acquired Company with respect to patentsPatents, trademarksTrademarks, copyrightsCopyrights, trade secrets or other intellectual propertyIntellectual Property Asset (excluding all basic ordinary course business software), including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets Asset;
(except for the following: (1v) Intellectual Property Assets disclosed in Part 4.20 each collective bargaining agreement and other Contract to or with any labor union or other employee representative of the Parent Disclosure Schedule a group of employees and (2) commonly available software programs, such as retail shrink-wrap any Acquired Company and retail off the shelf Software)each employment Contract with an employee of any Acquired Company;
(vi) each joint venture, partnership, and any other Contracts Contract involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, Company with any other Person;
(vii) each Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or Shareholder or limit the freedom of any Acquired Company or Shareholder to engage in any line of business or to compete with any Person;
(viii) each Contract any plan or commitment or arrangement of any Acquired Company, written or oral, providing for commissions to bonuses, pensions, deferred compensation, retirement payments, profit sharing or by any Person based on sales, purchases or profits, other than direct payments for goodsthe like;
(ix) indebtedness for borrowed money by any Acquired Company;
(x) each power of attorney that is currently effective and outstanding with any Acquired Company;
(xi) each Contract for capital expenditures in excess of US Twenty Five Thousand Dollars ($50,00025,000) with any Acquired Company;
(xxii) each written warranty, guaranty, and Contract whereby any individual purports to release or hold harmless any Acquired Company from any claims; and
(xiii) any other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed Contract or commitment not made in Part 4.20 the ordinary course of business which calls for the Parent Disclosure Schedule) extended expenditure by any Acquired Company other than in the Ordinary Course any twelve (12) month period of Business;at least Twenty Five Thousand Dollars ($25,000).
(xib) each Except as set forth in Section 3.16(b) of the Disclosure Schedule, Shareholder has not or may not acquire any rights under, and neither Shareholder nor an affiliate of Shareholder has or may become subject to any obligation or liability under, any Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;; and
(xii) each written amendment, supplement, and modification in respect of any of the foregoing.
(bc) Except as set forth in Part 4.16(bSection 3.16(c) of the Parent Disclosure Schedule, to the Knowledge of Shareholder, each Contract identified or required to be identified in Part 4.16(aSection 3.16(a) of the Parent Disclosure Schedule is in full force and effect.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(aSection 3.16(d) of the Disclosure Schedule:
(i) To the Knowledge of Shareholder, each Acquired Company is, and at anytime since December 31, 1999 has been, is in material compliance with all applicable terms and requirements of each such 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 any Acquired Company is party toor was bound;
(ii) to Parent’s Knowledgethe Knowledge of Shareholder, 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 in material compliance with such Contract; and
(iii) no event has occurred or circumstances or, to the Knowledge of Shareholder, circumstance exists that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)time) will may result in a violation or Breach of, or give an event of default under any Acquired Company, or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or to cancel, terminate or modify any such Contracts (other than Contracts which are terminable without cause in accordance with their terms); and
(iii) no Acquired Company has given to, or received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(aSchedule 3.13(a) of the Parent Disclosure Schedule contains a complete and accurate list, and Seller has delivered to or made available to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof500,000.00;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,000500,000.00;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies by the Company in excess of US $50,000100,000.00;
(iv) each lease 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 including without limitation any Aircraft (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 100,000.00 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,000250,000.00;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(a) 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 office where details relating to the Contracts are located.
(b) Except as set forth in Schedule 3.13(b):
(i) neither Seller (and no Related Person of either Seller) has or may acquire any Acquired Company 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 assets owned or used by, any Acquired the Company;; and
(xiiii) each written amendmentno officer, supplementdirector, and modification in respect of any agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b) of the Parent Disclosure ScheduleSchedule 3.13(c), each Contract identified or required to be identified in Part 4.16(aSchedule 3.13
(a) of the Parent Disclosure Schedule is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure Schedule:Schedule 3.13(d):
(i) each Acquired the Company is, and at anytime all times since December 31January 1, 1999 1998, has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since January 1, 1998, has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31January 1, 19991998, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Seller has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof100,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,000100,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,000100,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 100,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non- disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profitsprofits by or of the Company, other than direct payments for goods;
(ix) each Contract goods and sales commission arrangements for capital expenditures in excess of US $50,000employees;
(x) each power of attorney granted by the Company that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for future capital expenditures in excess of $15,000;
(xiii) each currently effective written warranty, guaranty, indemnity, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;
(xixiv) each Contract with any Related Person of any Acquired Company that relates to the business of, or any for indebtedness of the assets owned or used by, any Acquired Company;Company involving future aggregate payments of more than $10,000; and
(xiixv) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b3.17(b) of the Parent Disclosure ScheduleLetter:
(i) Seller (and no Related Person of the Seller) does not have or may acquire any rights under, and Seller does not have 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, the Company; and
(ii) no officer, director or key employee of the Company is bound by any Contract that purports to limit the ability of such officer, director or key employee to engage in or continue any conduct, activity, or practice relating to the business of the Company.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effect and is valid and enforceable in accordance with its terms subject to the enforceability of remedies to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws effecting the enforcement of creditors' rights generally from time to time in effect.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times has been since December 31January 1, 1999 has been1995, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired the Company has or had any material obligation or liability or by which the Company or any of the material assets owned or used by the Company is party toor was bound except where such non-compliance would not have a Material Adverse Effect;
(ii) to Parent’s the Company's and the Seller's Knowledge, each other Person that has or had any material obligation or liability under any Contract under which the Company has or had any rights is in full compliance with all material applicable terms and requirements of such Contract except where such non-compliance would not have a Material Adverse Effect;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)time) will would result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any Applicable Contract except where such Contracts (other than Contracts which are terminable without cause breach would not result in accordance with their terms)a Material Adverse Effect; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime since December 31, 1999, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Applicable Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Applicable Contracts with any Acquired Company in excess of US $100,000Person and, to Seller's Knowledge, no such Person has made written demand for such renegotiation.
(ef) To Parent’s Knowledge, all The Applicable Contracts which any Acquired relating to the sale or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts 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.
(g) The Company has made available to Buyer true, complete and correct copies of the Contracts required to be set forth in writingPart 3.17 of the Disclosure Letter.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof10,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00010,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies in excess of US $50,00010,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(vii) 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;
(viii) each Applicable Contract providing for commissions 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) 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 Applicable Contract for capital expenditures in excess of US $50,00010,000;
(xxii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiii) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts and the amount of the remaining commitment of the Company under the Contracts.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) no Seller (and no Related Person of any Acquired Company 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 the Company;; and
(xiiii) each written amendmentno officer, supplementdirector, and modification in respect of any agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31January 1, 1999 1995 has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since January 1, 1995 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31January 1, 19991995, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.16(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and the Company has delivered to Parent true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof25,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00025,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00010,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 25,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)Employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other Employee representative of a group of Employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney executed by the Company that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00010,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b3.16(b) of the Parent Disclosure ScheduleLetter, each Applicable Contract identified or required to be identified in Part 4.16(a3.16(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable against the Company in accordance with its terms.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.16(c) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31February 5, 1999 1997 has been, in compliance with all applicable terms and requirements of each such Applicable Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgethe Knowledge of the Company, each other Person that has or had any obligation or liability under any Applicable Contract under which the Company has or had any rights is, and at all times since the Company's inception has been, in compliance with all applicable terms and requirements of such Applicable Contract;
(iii) to the Knowledge the Company, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not been given to, or received from any other Person, at anytime since December 31, 1999, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Applicable Contract.
(d) There are no existing renegotiations with respect re negotiations of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Applicable Contracts with any Acquired Person and no such Person has made written demand to the Company in excess of US $100,000for such renegotiation.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i1) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;
(ii2) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,000;
(iii3) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,000;
(iv4) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 50,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(v5) each licensing agreement or other Applicable Contract with respect to material patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi6) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(7) each material joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(vii) 8) 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;
(viii9) each Applicable Contract involving more than $50,000 and providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix10) each power of attorney that is currently effective and outstanding;
(11) 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;
(12) each Applicable Contract for capital expenditures in excess of US $50,000;
(x13) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xi14) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written material amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b3.17(b) of the Parent Disclosure ScheduleLetter:
(1) neither Seller (nor any Related Person of either Seller) has any rights under, and neither Seller (nor any Related Person of either Seller) has any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, the Company; and
(2) no officer, director, employee, consultant, or contractor of the Company is bound by any Contract with the Company that purports to limit the ability of such officer, director, 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 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i1) each Acquired the Company is, and at anytime all times since December 31January 1, 1999 1998 has been, in material compliance with all applicable terms and requirements of each such material Contract under which such Acquired 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 party toor was bound;
(ii2) to Parent’s Knowledgethe actual Knowledge of the Sellers and the persons who are entering into the Employment and Noncompetition Agreements each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since January 1, 1998 has been, in material compliance with all applicable terms and requirements of such Contract;
(3) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may, without limitationin any material respect, after giving effect to the Contemplated Transactions)) will contravene, conflict with, or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any Applicable Contract and no notice has been received of such Contracts (other than Contracts which are terminable without cause in accordance with their terms)event or circumstance or declaring a default; and
(iii4) no Acquired the Company has not given toto nor have the Sellers in their capacity as employees, officers or directors or otherwise received from any other Person, at anytime any time since December 31January 1, 1999, 1998 any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such material Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for any such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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 except for such violations as shall not have a Material Adverse Effect.
Appears in 1 contract
Sources: Stock Purchase Agreement (South Financial Group Inc)
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof15,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00015,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00015,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 15,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each Contract goods and sales commission arrangements for capital expenditures in excess of US $50,000employees;
(x) each power of attorney granted by the Company that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for future capital expenditures in excess of $15,000;
(xiii) each currently effective written warranty, guaranty, indemnity, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;
(xixiv) each Contract with any Related Person of any Acquired Company that relates to the business of, or any for indebtedness of the assets owned or used by, any Acquired Company;Company involving future aggregate payments of more than $10,000; and
(xiixv) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b3.17(b) of the Parent Disclosure ScheduleLetter:
(i) Sellers (and no Related Person of the Sellers) do not have or may acquire any rights under, and Sellers do not have 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, 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 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 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime since December 31, 1999 all times has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired the Company has or had any material obligation or liability or by which the Company or any of the material assets owned or used by the Company is party toor was bound;
(ii) to Parent’s Knowledge, each other Person that has or had any material obligation or liability under any Contract under which the Company has or had any rights is in full compliance with all material applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime since December 31, 1999, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Applicable Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Applicable Contracts with any Acquired Company in excess of US $100,000Person and, to Sellers' Knowledge, no such Person has made written demand for such renegotiation.
(ef) To Parent’s Knowledge, all The Applicable Contracts which any Acquired relating to the sale or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts 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.
(g) The Company has made available to Buyer true, complete and correct copies of the Contracts required to be set forth in writingPart 3.17 of the Disclosure Letter.
Appears in 1 contract
Contracts; No Defaults. (a) Except for any Contract set forth in Part 4.16(a3.15(b) of the Parent Disclosure Schedule contains Letter, Part 3.15(a) of the Disclosure Letter sets forth a complete and accurate list, and copiesthe Companies have delivered or otherwise made available to Buyer or its Representatives true and complete copies (or in the case of any oral Contract, a true and complete summary), of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired of the Companies of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof500,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired of the Companies of an amount or value in excess of US $50,000500,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired of the Companies in excess of US $50,000500,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 500,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, copyrights or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, of the Companies with any other PersonPerson other than any of the Companies;
(viiviii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company the Companies or limit the freedom of any Acquired Company the Companies to engage in any line of business or to compete with any Person;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by the Companies to be responsible for consequential damages;
(xii) each Applicable Contract for capital expenditures in excess of US $50,000500,000 or any group of Applicable Contracts for capital expenditures which exceed $500,000 in the aggregate;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company the Companies other than in the Ordinary Course of Business;
(xixiv) each Applicable Contract with relating to any Related Person Indebtedness of any Acquired Company the Companies in excess of $500,000 that relates will be outstanding immediately prior to the business of, or any of the assets owned or used by, any Acquired Company;Closing Date; and
(xiixv) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b3.15(b) of the Parent Disclosure ScheduleLetter, each Contract identified no officer, director, agent, employee, consultant or required to be identified in Part 4.16(a) contractor of the Parent Disclosure Schedule is Companies is, to CAC’s Knowledge, bound by any Contract that purports to limit the ability of such Person to (A) engage in full force and effector continue any conduct, activity or practice relating to the business of any of the Companies, or (B) assign to any of the Companies or to any other Person any rights to any invention, improvement or discovery.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.15(c) of the Disclosure ScheduleLetter, each Contract identified in Part 3.15(a) of the Disclosure Letter is in full force and effect and none of the Companies has received any written notice that any party to any such Contract intends to cancel, terminate or fail to renew such Contract.
(d) Each lease into which any of the Companies has entered since June 30, 2006 was entered into in the Ordinary Course of Business and consistent with past practices.
(e) Except as set forth in Part 3.15(e) of the Disclosure Letter:
(i) each Acquired Company is, and at anytime since December 31, 1999 has been, the Companies are in full compliance with all applicable terms and requirements of each such Contract under which such Acquired Company is party tothey have any obligation or liability or by which they or any of the assets owned or used by them are bound;
(ii) to ParentCAC’s Knowledge, each other Person that has any obligation or liability under any Contract under which any of the Companies has any rights is in full compliance with all applicable terms and requirements of such Contract;
(iii) to CAC’s Knowledge, no event has occurred since February 10, 2004 or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Companies or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)material Applicable Contract; and
(iiiiv) no Acquired Company has none of the Companies has, since February 10, 2004, given to, to or received from any other Person, at anytime since December 31, 1999, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, possible or potential violation or Breach breach of, or default under, any such Contract.
(d) There are no existing renegotiations Contract with respect to customer Contracts with respect which obligations are owing to amounts paid or payable to due from any Acquired Company in excess of US $100,000the Companies.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Sources: Stock Purchase, Redemption and Contribution Agreement (Compass Group Diversified Holdings LLC)
Contracts; No Defaults. (a) Part 4.16(a) of the Parent Disclosure Schedule 3.18 contains a complete and accurate list, and Major Shareholders have delivered to Buyer true and complete copies, of:
(i) each Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies Target and its Subsidiaries of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof10,000;
(ii) each Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies Target and its Subsidiaries of an amount or value in excess of US $50,00010,000;
(iii) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies Target and its Subsidiaries in excess of US $50,00010,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(v) each licensing agreement or other Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, Target and its Subsidiaries with any other Person;
(viiviii) each Contract containing covenants that in any way purport to restrict the business activity of Target and its Subsidiaries or any Acquired Company Affiliate of Target and its Subsidiaries or limit the freedom of Target and its Subsidiaries or any Acquired Company Affiliate of Target and its Subsidiaries to engage in any line of business or to compete with any Person;
(viiiix) each Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) each Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Target and its Subsidiaries to be responsible for consequential damages;
(xii) each Contract for capital expenditures in excess of US $50,00010,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company Target and its Subsidiaries other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Schedule 3.18 sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts and the amount of the remaining commitment of the Target and its Subsidiaries under the Contracts.
(b) Except as set forth in Schedule 3.18:
(i) no Major Shareholder (and no Related Person of any Acquired Company Major Shareholder) has nor may it acquire any rights under, and no Major Shareholder has nor may it 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;Target and its Subsidiaries; and
(xiiii) each written amendmentno officer, supplementdirector, agent, employee, consultant, or contractor of Target and modification 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 respect or continue any conduct, activity, or practice relating to the business of Target and its Subsidiaries, or (B) assign to Target and its Subsidiaries or to any of the foregoingother Person any rights to any invention, improvement, or discovery.
(bc) Except as set forth in Part 4.16(b) of the Parent Disclosure ScheduleSchedule 3.18, each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule 3.18 is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure ScheduleSchedule 3.18:
(i) each Acquired Company of Target and its Subsidiaries is, and at anytime all times since December 31, 1999 inception has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired Company Target and its Subsidiaries has or had any obligation or liability or by which such Target and its Subsidiaries or any of the assets owned or used by such Target and its Subsidiaries is party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which Target and its Subsidiaries has or had any rights is, and at all times since inception has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, Target and its Subsidiaries or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Contract; and
(iiiiv) no Acquired Company neither Target nor its Subsidiaries has given to, to or received from any other Person, at anytime any time since December 31, 1999inception, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to Target and its Subsidiaries under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, as of the date hereof, and the Company has delivered to Buyer true and complete copies, of:
(i) each Contract that involves performance of services or delivery of goods, services goods or materials (in by the Company or any 12-month period) by one or more Acquired Companies of its Subsidiaries of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof25,000;
(ii) each Contract that involves performance of services or delivery of goods or materials to one the Company or more Acquired Companies any of its Subsidiaries of an amount or value in excess of US $50,00025,000;
(iii) each Contract that was not entered into in the Ordinary Course ordinary course of Business business consistent with past practices and that involves expenditures or receipts of one the Company or more Acquired Companies any of its Subsidiaries in excess of US $50,00010,000;
(iv) each lease 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 property or material personal property (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Software).property;
(v) each licensing agreement or other Contract with respect required to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts), consultants, or contractors regarding the appropriation or the nondisclosure of any be listed in Part 3.22(b) of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Letter;
(vi) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Contract involving a sharing of profits, losses, costs costs, or Liabilities liabilities by the Company or any Acquired Company, of its Subsidiaries with any other Person;
(viiviii) each Contract (A) containing covenants that in any way purport to restrict the business activity of any Acquired the Company or limit any of its Subsidiaries (other than non-disclosure agreements entered into in the ordinary course of business consistent with past practices or in connection with potential acquisitions by the Company), or (B) limiting the freedom of the Company or any Acquired Company of its Subsidiaries to engage in any line of business or to compete with any Person;
(viiiix) each Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) each Contract for capital expenditures in excess of US $50,00025,000;
(xxii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by the Company or any Acquired Company of its Subsidiaries other than in the Ordinary Course ordinary course of Business;business consistent with past practices; and
(xixiii) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification in respect of any of the foregoing.
(b) To the Company’s Knowledge, no officer, director, agent, employee, consultant, or contractor of the 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 employment or other activity for or on behalf of the Company or any of its Subsidiaries for which such person has specifically been employed or engaged, or (B) assign to the Company or any of its Subsidiaries any rights to any invention, improvement, or discovery made by such person in connection with such employment or other activity for or on behalf of the Company or any of its Subsidiaries.
(c) Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms, in each case, as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforcement is sought in a proceeding at law or in equity).
(cd) Except as set forth in Part 4.16(c3.17(d) of the Parent Disclosure Schedule, Letter: (i) each of the Company and its Subsidiaries is in compliance in all material respects with respect to all applicable terms and requirements of each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Disclosure Schedule:
Letter; (iii) to the Knowledge of the Company, each Acquired other Person that has any obligation or liability under any Contract under which the Company isor any of its Subsidiaries have any rights, and at anytime since December 31, 1999 has been, is in compliance in all material respects with all applicable terms and requirements of each such Contract under which such Acquired Company is party to;
Contract; (iiiii) to Parent’s Knowledge, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired the Company, any of its Subsidiaries or any other Person party to such Contracts, 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 modify, any such Contracts Contract; and (other than Contracts which are terminable without cause in accordance with their terms); and
(iiiiv) no Acquired neither the Company nor any of its Subsidiaries has given to, to or received from any other Person, at anytime since December 31, 1999, Person any written notice regarding any actual, alleged, possible, or potential material violation or Breach material breach of, or material default under, any such Contract.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof10,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00010,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00010,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non- disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,0002,500;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b3.17(b) of the Parent Disclosure Schedule:
(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 assets owned or used by, the Company; and
(ii) to the Knowledge of Sellers 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 Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure Schedule:
(i) each Acquired the Company is, and at anytime all times since December 31January 1, 1999 1991 has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired the Company has or had any obligation or liability or by which the Company or any of the assets owned or used by it is party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since January 1, 1991 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31January 1, 19991991, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(aA. SCHEDULE 3.17(A) of the Parent Company Disclosure Schedule contains a complete and accurate listlist (other than Customer License Agreements which are disclosed in Section 3.22.), and the Company has delivered to Merger Sub and Parent true and complete copies, of:
(i) each Each Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one the Company or more Acquired Companies the Subsidiary of an amount or value in excess of US Twenty-Five Thousand and No/100 Dollars ($50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof25,000.00);
(ii) each Each Contract that involves performance of services or delivery of goods or materials to one the Company or more Acquired Companies the Subsidiary of an amount or value in excess of US Twenty-Five Thousand and No/100 Dollars ($50,00025,000.00);
(iii) Except for customer Contracts and inventory and equipment purchase orders incurred in the Ordinary Course of Business, each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one the Company or more Acquired Companies the Subsidiary in excess of US Twenty-Five Thousand and No/100 Dollars ($50,00025,000.00);
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US Twenty-Five Thousand and No/100 Dollars ($50,000, 25,000.00) and with terms of less than one (21) Intellectual Property Assets disclosed in Part 4.20 year) of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Software).Company or the Subsidiary;
(v) each licensing Each collective bargaining agreement and other Contract to or with any labor union or other Contract with respect employee representative of a group of employees relating to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts), consultants, or contractors regarding the appropriation Company or the nondisclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Subsidiary;
(vi) each Each joint venture, partnership, and any other Contracts Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company or the Subsidiary with any other Person;
(vii) each Each Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or the Subsidiary or limit the freedom of any Acquired the Company or the Subsidiary to engage in any line of business or to compete with any Person;
(viii) each Each Contract (relating to the Company or the Subsidiary) providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each Each power of attorney relating to the Company or the Subsidiary that is currently effective and outstanding;
(x) Each Contract relating to the Company or the Subsidiary for capital expenditures in excess of US Twenty-Five Thousand and No/100 Dollars ($50,00025,000.00);
(xxi) each Each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company or the Subsidiary other than in the Ordinary Course of Business;
(xi) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;; and
(xii) each written Each amendment, supplement, and modification in respect of any of the foregoing.
(b) B. Except as set forth in Part 4.16(bSCHEDULE 3.17(B) of the Parent Company Disclosure Schedule, to the Knowledge of the Company, no officer, director, or employee of the Company or the Subsidiary is bound by any Contract that purports to limit the ability of such officer, director or employee to (i) engage in or continue any conduct, activity, or practice relating to the business of the Company or any Subsidiary, as currently conducted or (ii) assign to the Company or any Subsidiary any rights to any invention, improvement, or discovery relating to the business of the Company or any Subsidiary.
C. Except as set forth in SCHEDULE 3.17(C) of the Company Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(aSCHEDULE 3.17(A) of the Parent Company Disclosure Schedule is in full force and effect, except as to matters or default which in the aggregate would not have a Company Material Adverse Effect.
(c) D. Except as set forth in Part 4.16(cSCHEDULE 3.17(D) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Company Disclosure Schedule:
(i) The Company and each Acquired Company is, and at anytime since December 31, 1999 has been, Subsidiary is in full compliance with all applicable material terms and requirements of each such Contract under which Company or such Acquired Subsidiary has or had any obligation or liability or by which Company or such Subsidiary or any of the assets owned or used by Company or such Subsidiary is party toor was bound, except where the failure to comply with such terms and requirements would not have a Company Material Adverse Effect;
(ii) to Parent’s KnowledgeTo the Knowledge of the Company, each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is in full compliance with all material terms and requirements of such Contract;
(iii) To the Knowledge of the Company, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts material Contract, except for events or circumstances which are terminable without cause in accordance with their terms)the aggregate would not have a Company Material Adverse Effect; and
(iiiiv) no Acquired Neither the Company nor any Subsidiary has given to, to or received from any other Person, at anytime any time since December March 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such material Contract.
(d) E. There are no existing renegotiations with respect of or attempts to customer Contracts with respect to renegotiate any material amounts paid or payable to the Company or any Acquired Subsidiary under current or completed Contracts with any Person and the Company in excess of US $100,000has not received any written demand for such renegotiation.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Practice Works Inc)
Contracts; No Defaults. (a) Part 4.16(aSchedule 3.17(a) of the Parent Disclosure Schedule contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof5,000 (CAD);
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,0005,000 (CAD);
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,0005,000 (CAD);
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, 5,000 (2CAD) Intellectual Property Assets disclosed in Part 4.20 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,0005,000 (CAD);
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Schedule 3.17(a) 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 Schedule 3.17(b):
(i) neither Seller (and no Related Person of either Seller) has or may acquire any Acquired Company 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 assets owned or used by, any Acquired the Company;; and
(xiiii) each written amendmentto the Knowledge of Sellers and the Company, supplementno officer, and modification in respect of any director, agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b) of the Parent Disclosure ScheduleSchedule 3.17(c), each Contract identified or required to be identified in Part 4.16(aSchedule 3.17(a) of the Parent Disclosure Schedule is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure Schedule:Schedule 3.17(d):
(i) each Acquired the Company is, and at anytime all times since December 31, 1999 2003 has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgethe Knowledge of the Sellers, each other counterparty that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since December 31, 2003 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31, 19992003, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Sources: Stock Purchase Agreement (Wireless Ronin Technologies Inc)
Contracts; No Defaults. (a) Part 4.16(aSchedule 2.12(a) of the Parent Disclosure Schedule contains a complete and accurate list, and copies, Sellers have delivered to Buyer true and complete copies (except for the Vendor Agreements as set forth on Annex 1 of the Schedule attached hereto) of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services or materials (in any 12-month period) by one or more Acquired Companies of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;
(ii) each Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00025,000;
(iiiii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00025,000;
(iviii) each lease 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 used primarily in the conduct of the Foodservice Business (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 25,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(viv) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual propertyproperty used primarily in the conduct of the Foodservice Business, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure of any of the Intellectual Property Assets Rights;
(except for the following: (1v) Intellectual Property Assets disclosed in Part 4.20 each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software);Foodservice Business.
(vi) each joint venture, partnership, and any investment or other Contracts agreement involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, Sellers or the Company with any other PersonPerson relating to the Foodservice Business;
(vii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Sellers (with respect to the Foodservice Business) or the Company or limit limits the freedom of any Acquired Sellers (with respect to the Foodservice Business) or the Company to engage in any line of business or to compete with any Person;
(viii) each Applicable Contract providing for commissions 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 outstanding;
(x) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Sellers (as it relates to the Foodservice Business) or the Company to be responsible for consequential damages;
(xi) each Applicable Contract for capital expenditures or for the purchase of intangible assets in excess of US $50,00025,000;
(xxii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than extended by Sellers with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Foodservice Business or the Company other than in the Ordinary Course of Business;; and
(xixiii) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written material amendment, supplement, and modification in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(bSchedule 2.12(b), no officer, director, agent, employee, consultant, or contractor of Sellers (with respect to the Foodservice Business) or the Company is bound by any Contract that limits 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 Parent Disclosure ScheduleFoodservice Business, each Contract identified or required (B) assign to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effectCompany or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure ScheduleSchedule 2.12(c), with respect to each Applicable Contract identified or required to be identified in Part 4.16(aSchedule 2.12
(a) of the Disclosure Schedule:is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Schedule 2.12(d):
(i) each Acquired Sellers (with respect to the Foodservice Business) and the Company is, and at anytime all times since December 31January 1, 1999 2000, has been, in compliance in all material respects with all applicable terms and requirements of each Contract relating to the Foodservice Business under which Sellers (with respect to the Foodservice Business) or the Company has or had any obligation or liability or by which Sellers (with respect to the Foodservice Business) or the Company or any of the assets owned or used by Sellers (with respect to the Foodservice Business) or the Company is or was bound;
(ii) to Sellers' Knowledge, each other Person that has or had any obligation or liability under any Contract under which Sellers (with respect to the Foodservice Business) or the Company has or had any rights relating to the Foodservice Business is, and at all times since January 1, 2000, has been, in material compliance with all applicable terms and requirements of each such Contract under which such Acquired Company is party toContract;
(iiiii) to Parent’s Knowledge, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, Sellers (with respect to the Foodservice Business) or any the Company or other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired neither Sellers (with respect to the Foodservice Business) nor the Company has given to, to or received from any other Person, at anytime any time since December 31January 1, 19992000, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such ContractContract relating to the Foodservice Business.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to Sellers or the Company under current or completed Contracts relating to the Foodservice Business with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(ef) The Contracts relating to the sale, production, manufacture, or provision of products or services by Sellers and the Company with respect to the Foodservice Business 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.
(g) To Parent’s Sellers' Knowledge, all Contracts which any Acquired Company is a party there are no material oral contracts with respect to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writingthe Foodservice Business.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(aSchedule 3.17(a) of the Parent Disclosure Schedule contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof10,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00010,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00010,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) each Applicable Contract for capital expenditures in excess of US $50,00010,000;
(xxii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiii) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification (whether oral or written) in respect of any of the 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 the Contracts are located.
(b) [Intentionally Deleted]
(c) Except as set forth in Part 4.16(b) of the Parent Disclosure ScheduleSchedule 3.17(c), each Contract identified or required to be identified in Part 4.16(aSchedule 3.17(a) of the Parent Disclosure Schedule is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure Schedule:Schedule 3.17(d):
(i) each Acquired to Sellers' Knowledge the Company is, and at anytime since December 31, 1999 all times has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s KnowledgeSellers' Knowledge each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) to Sellers' Knowledge no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, Person at anytime since December 31, 1999, any written time any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess Person and, to the Knowledge of US $100,000Sellers and the Company, no such Person has made written demand for such renegotiation.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule contains a complete and accurate list, and copies, Sellers have delivered or made available to Buyer true and complete copies of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof25,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00025,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00025,000;
(iv) each lease 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 of the Company (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 25,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(v) each licensing agreement or other Applicable Contract with the Company with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnershipPartnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ix) each Contract goods and sales commission arrangements for capital expenditures in excess of US $50,000employees;
(x) each power of attorney granted by the Company that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for future capital expenditures in excess of $25,000;
(xiii) each currently effective written warranty, guaranty, indemnity, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;
(xixiv) each Contract with any Related Person of any Acquired Company that relates to the business of, or any for indebtedness of the assets owned or used by, any Acquired Company;Company involving future aggregate payments of more than $25,000; and
(xiixv) each written amendment, supplement, and modification [(whether oral or written)] in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b3.17(b) of the Parent Disclosure Schedule.
(i) Sellers (and no Related Person of the Sellers) do not have any rights under, and Sellers do not have 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, the Company; and
(c) To the Knowledge of Company and the Sellers, except as set forth in Part 3.17(c) of the Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule is in full force and effect.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure Schedule:
(i) each Acquired the Company is, and at anytime since December 31, 1999 all times has been, in material compliance with all applicable terms and requirements of each such Contract under which such Acquired the Company has or had any material obligation or liability or by which the Company or any of the material assets owned or used by the Company is party toor was bound;
(ii) to Parent’s Knowledge, no event has occurred or circumstances exists that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)) will result in a violation or Breach of, or give any Acquired Company, or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or to cancel, terminate or modify any such Contracts (other than Contracts which are terminable without cause in accordance with their terms); and
(iii) no Acquired Company has given to, or not received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, actual or potential alleged violation or Breach breach of, or default under, any such Applicable Contract.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s the Knowledge of the Company or Sellers 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 Applicable Contracts with any Person and, to Sellers' Knowledge, all no such Person has made written demand for such renegotiation.
(f) The Applicable Contracts which any Acquired relating to the sale or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been entered into in the Ordinary Course of Business
(g) The Company has made available to Buyer true, complete and correct copies of the Contracts required to be set forth in writingPart 3.17 of the Disclosure Schedule.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a) of the Parent Disclosure Schedule 6.17 contains a complete and accurate list, and the Company has delivered to Purchaser true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services materials or materials (in any 12-month period) by one or more Acquired Companies products of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof15,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00015,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies in excess of US $50,00015,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 1,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00015,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company other than in the Ordinary Course of BusinessCompany;
(xixiv) each Applicable Contract with relating to the distribution of the Company's goods or products; and
(xv) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Schedule 6.17 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 office of the Company where details relating to the Contracts are located.
(b) Except as set forth in Schedule 6.17:
(i) no Seller (and no Related Person of any Acquired Company 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 the Company;; and
(xiiii) each written amendmentNo officer, supplementdirector, and modification in respect of any agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b) of the Parent Disclosure ScheduleSchedule 6.17, each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule 6.17 is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure ScheduleSchedule 6.17:
(i) each Acquired the Company is, and at anytime all times since December 31January 1, 1999 1992 has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since January 1, 1992 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31January 1, 19991992, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Seller has delivered to Buyer true and complete copies, of:
(i) each Contract that involves performance of services or delivery of goods, services or materials (in any 12-month period) by one or more Acquired Companies of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials by or to one or more Acquired Companies Company of an amount or value in excess of US $50,000$ 5,000 (except for the Management Contracts which have been provided to Buyer and not included on the Disclosure Letter);
(iiiii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies Company in excess of US $50,0001,000;
(iviii) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 1,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(viv) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets Assets;
(except for the following: (1v) Intellectual Property Assets disclosed in Part 4.20 any Applicable Contract to or with any labor union or other employee representative of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)a group of employees;
(vi) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(vii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company or any Acquired Affiliate of an Company or limit the freedom of the Company or any Acquired Affiliate of an Company to engage in any line of business or to compete with any Person;
(viii) each Applicable Contract providing for commissions 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) 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 Applicable Contract for capital expenditures in excess of US $50,0001,000;
(xxii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiii) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Unless set forth in Part 3.17(b) of the Disclosure Letter:
(i) Seller (and no Related Person of Seller) has not entered into any Acquired Company arrangement that provides for current or future acquisition rights nor being subject to any obligation or liability that relates to the business of, or any of the assets owned or used by, any Acquired the Company;; and
(xiiii) each written amendmentto the Knowledge of Seller and the Company, supplementno officer, and modification in respect of any director, agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as Unless set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired Company isthe Company, and any other Person with any obligation or liability under any Contract, is and at anytime all times since December 31January 1, 1999 2010 has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledge, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iii) no Acquired Company has given to, to or received from any other Person, at anytime any time since December 31January 1, 19992010, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Sources: LLC Ownership Interest Purchase Agreement (Vystar Corp)
Contracts; No Defaults. Part 3.17
(a) Part 4.16(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Seller have delivered to Buyer true and complete copies, of:
(i) : each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,00010,000.00; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,000;
(iii) 10,000.00; each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,000;
(iv) 10,000.00; each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000.00 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 Assets; each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software);
(vi) a group of employees; each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(vii) ; each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company, the Seller or any Acquired Affiliate of the Company or limit the freedom of the Company, the Seller or any Acquired Affiliate of the Company to engage in any line of business or to compete with any Person;
(viii) ; each Applicable Contract providing for commissions 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; 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; each Applicable Contract for capital expenditures in excess of US $50,000;
(x) 10,000.00; each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;
; and each amendment, supplement, and modification (xiwhether oral or written) each Contract with in respect of any of the 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 the Contracts are located. Except as set forth in Part 3.17(b) of the Disclosure Letter: neither Seller (and no Related Person of Seller) has or may acquire any Acquired Company 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 assets owned or used byby the Company; and no officer, any Acquired Company;
(xii) each written amendmentdirector, supplementagent, and modification in respect of any employee, consultant, or contractor of the foregoing.
Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (bA) 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. Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effect.
(c) effect and is valid and enforceable in accordance with its terms. Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure Schedule:
(i) each Acquired Letter: the Company is, and at anytime all times since December 31January 1, 1999 has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party to;
(ii) to Parent’s Knowledgeor was bound; each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since January 1, 1999 has been, in full compliance with all applicable terms and requirements of such Contract; no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iii) no Acquired and the Company has not given to, to or received from any other Person, at anytime any time since December 31January 1, 1999, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(d) . There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Person and no such Person has made written demand for such renegotiation. The Contracts relating to the sale, design, manufacture, or provision of products or services by the Company has been entered into in excess the Ordinary Course of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing Business and all and any amendments, settlements and modifications to any Contracts have been made entered into without the commission of any act alone or in writingconcert 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
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Shareholders Disclosure Schedule Letter contains a complete and accurate list, and the Majority Shareholders have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof75,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00075,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00075,000;
(iv) each lease lease, rental or occupancy agreement, license, installment and conditional sale agreement, 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 75,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, copyrights or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, consultants or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, partnership and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00075,000;
(xxiii) each written warranty, guaranty, guaranty and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(a) of the Shareholders 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 where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Shareholders Disclosure Letter:
(i) no Seller (and no Related Person of any Acquired Company 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 the Company;; and
(xiiii) each written amendment, supplement, and modification in respect of any to the Knowledge of the foregoingCompany or either Majority Shareholder 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 Person any rights to any invention, improvement or discovery.
(bc) Except as set forth in Part 4.16(b3.17(c) of the Parent Shareholders Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Shareholders Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c3.17(d) of the Parent Shareholders Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31July 1, 1999 1996, has been, in full compliance with all applicable terms and requirements of each such material Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgethe Knowledge of the Company or either Majority Shareholder, each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since July 1, 1996, has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31July 1, 19991996, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, possible or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Sources: Reorganization Agreement (Pacific Coast Apparel Co Inc)
Contracts; No Defaults. (a) Part 4.16(aSchedule 3.18(a) of the Parent Disclosure Schedule contains a an accurate and complete and accurate list, and Seller has delivered to Buyer accurate and complete copies, of:
(i) each Seller Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies Seller of an amount or value in excess of US Twenty-Five Thousand Dollars ($50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof25,000);
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies Seller of an amount or value in excess of US Twenty-Five Thousand Dollars ($50,00025,000);
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies Seller in excess of US Fifty Thousand Dollars ($50,000;)
(iv) each lease agreement, license, installment and conditional sale agreement, and other Seller Contract affecting the ownership of, leasing of, title to, use of, of or any leasehold or other interest in, in any real or personal property (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US Ten Thousand Dollars ($50,000, 10,000) and with a term of less than one (21) Intellectual Property Assets disclosed in Part 4.20 of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareyear).;
(v) each licensing agreement Seller Contract with any labor union or other Contract with respect employee representative of a group of employees relating to patentswages, trademarks, copyrights, or hours and other intellectual property, including agreements with current or former employees (other than their employment contracts), consultants, or contractors regarding the appropriation or the nondisclosure conditions of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)employment;
(vi) each joint venture, partnership, and any other Contracts Seller Contract (however named) involving a sharing of profits, losses, costs or Liabilities liabilities by any Acquired Company, Seller with any other Person;
(vii) 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;
(viii) each Seller Contract providing for commissions 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) each Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Seller to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of US Twenty-Five Thousand Dollars ($50,00025,000);
(xxii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty, and or guaranty and/or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company Seller other than in the Ordinary Course of Business;; and
(xixiv) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, supplement and modification (whether oral or written) in respect of any of the foregoing. Schedule 3.18(a) sets forth the parties to the Contracts and the amount of the remaining commitment of Seller under the Contracts.
(b) Except as set forth in Part 4.16(b) Schedule 3.18(b), no shareholder of Seller 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 Seller or any of the Parent Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effectAssets.
(c) Except as set forth in Part 4.16(cSchedule 3.18(c):
(i) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(aSchedule 3.18(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 Schedule 3.18(a) and which is being assigned to or assumed by Buyer is assignable by Seller to Buyer without the consent of any other Person; and
(iii) to the Disclosure Schedule:Knowledge of Seller, no Contract identified or required to be identified in Schedule 3.18(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, assets or condition of Seller or the business to be conducted by Buyer with the Assets.
(d) Except as set forth in Schedule 3.18(d):
(i) each Acquired Company Seller is, and at anytime since December 31, 1999 all times has been, in compliance with all applicable terms and requirements of each such Seller Contract under which such Acquired Company is party tobeing assumed by Buyer;
(ii) to Parent’s Seller's Knowledge, each other Person that has or had any obligation or liability under any Seller Contract which is being assigned to Buyer is, and at all times has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) to Seller's Knowledge, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) contravenes, without limitation, after giving effect to the Contemplated Transactions)) conflicts with or will result in a violation or Breach of, or give any Acquired Company, accelerates the maturity or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or payment under, or cancels, terminates or modifies, any Seller Contract that is being assigned to cancel, terminate or modify assumed by Buyer;
(iv) to Seller's Knowledge no event has occurred or circumstance exists under or by virtue of any such Contracts Contract that (other than Contracts which are terminable with or without notice or lapse of time) would cause in accordance with their terms)the creation of any Encumbrance affecting any of the Assets; and
(iiiv) no Acquired Company Seller has not given to, to or received from any other Person, at anytime since December 31, 1999, Person any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, actual or potential violation or alleged Breach of, or default under, any such ContractContract which is being assigned to or assumed by Buyer.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Seller under current or completed Contracts with any Acquired Company in excess of US $100,000Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeEach Contract relating to the sale, all Contracts which design, 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 Acquired Company act alone or in concert with any other Person, or any consideration having been paid or promised, that is a party to are or would be in writing and all and violation of any amendments, settlements and modifications to any Contracts have been made in writingLegal Requirement.
Appears in 1 contract
Contracts; No Defaults. (aSchedule 3.12(a) Part 4.16(a) of the Parent Disclosure Schedule contains a complete and accurate list, and the Seller has delivered to the Purchaser true and complete copies, of:
: (i) each Contract (excluding individual invoices or order confirmations in the Ordinary Course of Business) that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Business of an amount or value in excess of US $50,0001,000,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;
(ii) each Contract (excluding individual purchase orders in the Ordinary Course of Business) that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Business of an amount or value in excess of US $50,000;
1,000,000; (iii) each material Contract pursuant to which the Business licenses other persons to use any of the Owned Software or Licensed Software or has agreed to support, maintain, upgrade, enhance, modify, or consult with respect to any of the Owned Software or Licensed Software, or pursuant to which other persons license the Business to use the Licensed Software; (iv) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Business in excess of US $50,000;
250,000; (ivv) the Assumed Real Property Lease, each lease agreementAssumed Personal Property Lease, or other material license, lease, 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 of the Acquired Assets; (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Software).
(vvi) each licensing agreement or other Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts), consultants, or contractors regarding the appropriation or the nondisclosure of any of the material Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and Business; (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software);
(vivii) each material joint venture, partnership, and any other Contracts Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Business with any other Person;
; (viiviii) each Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company the Business, or limit the freedom of any Acquired Company the Business to engage in any line of business or to compete with any Person;
(viii) each Contract providing for commissions to or by any Person based on sales, purchases or profits, other than direct payments for goods;
; (ix) each power of attorney of the Business that is currently effective and outstanding; (x) each Contract of the Business for capital expenditures in excess of US $50,000;
250,000; and (xxi) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than the Acquired Assets or the Business. The Assumed Contracts are in full force and effect and are valid and enforceable in accordance with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company other than in the Ordinary Course of Business;
(xi) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification in respect of any of the foregoing.
(b) their terms. Except as set forth in Part 4.16(b) of the Parent Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effect.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure Schedule:
3.12(c): (i) each Acquired Company is, and at anytime since December 31, 1999 The Seller has been, in compliance complied with all applicable terms and requirements of each such Contract under which such Acquired Company is party to;
the Assumed Contracts; (ii) to Parent’s Knowledge, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Seller or any other Person party to such Contracts, 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 such Contracts (other than Contracts which are terminable without cause in accordance with their terms)modify, the Assumed Contracts; and
and (iii) no Acquired Company the Seller has not given to, to or received from any other Person, at anytime since December 31, 1999, Person any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(d) the Assumed Contracts. There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Seller under the Assumed Contracts, with any Acquired Company in excess Person and to the Knowledge of US $100,000the Seller, no such Person has made written demand for such renegotiation.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3 . l 7(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Shareholders have delivered to Purchaser true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000$ 15,000.00; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,000;
$ 15,000.00; (iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,000;
$ 15,000.00 (iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000.00 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software);
Assets; (vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees; (vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
; (viiviii) 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;
; (viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
; (ixx) each power of attorney that is currently effective and outstanding; (xi) 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; (xii) each Applicable Contract for capital expenditures expenditures, including any Contract for computer and telephone systems hardware and software, and any other Contract in excess of US $50,000;
15,000.00; (xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and (xiv) each amendment, supplement, and modification (whether oral or written) in respect of any of the 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 the Contracts are located.
(xib) each Contract with any Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) no Shareholder (and no Related Person of any Acquired Company 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 assets owned or used by, any Acquired the Company;
; and (xiiii) each written amendmentno officer, supplementdirector, and modification in respect of any agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31, 1999 31,1991 has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party to;
or was bound; (ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since December 31, 1991 has been, in full compliance with all applicable terms and requirements of such Contract; (iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts Applicable Contract; and (other than Contracts which are terminable without cause in accordance with their terms); and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31, 19991991, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Sources: Stock Purchase Agreement (United Stationers Supply Co)
Contracts; No Defaults. (a) Part 4.16(aSection 3.16(a) of the Parent Disclosure Schedule contains a complete and accurate listlist in all material respects, and Seller has delivered to TOG true, complete and correct copies, of:
(i) each Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies Seller of an amount or value in excess of US Five Thousand Dollars ($50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof5,000);
(ii) each Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies Seller of an amount or value in excess of US Five Thousand Dollars ($50,0005,000);
(iii) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies in excess of US $50,000;
(iv) each lease agreementlease, 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 that involves the payment by or to Seller in excess of Twenty Five Thousand Dollars (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Software25,000).;
(viv) each licensing agreement or other Contract with respect to patentsPatents, trademarksTrademarks, copyrightsCopyrights, trade secrets or other intellectual propertyIntellectual Property Assets, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets Assets;
(except for the following: (1v) Intellectual Property Assets disclosed in Part 4.20 each collective bargaining agreement and other Contract to or with any labor union or other employee representative of the Parent Disclosure Schedule a group of employees and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)each employment Contract with a SSI Employee;
(vi) each joint venture, partnership, and any other Contracts Contract involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, Seller with any other PersonPerson relating at all to the SSI Business;
(vii) each Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company Seller or limit the freedom of any Acquired Company Seller to engage in any line of business or to compete with any Person;
(viii) each Contract any plan or commitment or arrangement, written or oral, providing for commissions to bonuses, pensions, deferred compensation, retirement payments, profit sharing or by any Person based on sales, purchases or profits, other than direct payments for goodsthe like;
(ix) any indebtedness for borrowed money;
(x) each power of attorney that is currently effective and outstanding;
(xi) each Contract for capital expenditures in excess of US Ten Thousand Dollars ($50,00010,000);
(x) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company other than in the Ordinary Course of Business;
(xixii) each Contract with whereby any Related Person individual using services preformed by Seller in the SSI business purports to release or hold harmless Seller from claims; and
(xiii) any other Contract or commitment not made in the ordinary course of business which calls for the expenditures by Seller in any Acquired Company twelve (12) month period of at least Twenty Five Thousand Dollars ($25,000).
(b) Except as set forth in Section 3.16(b) of the Disclosure Schedule, no member of Seller has or may acquire any rights under, and no member or affiliate of 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;
(xii) each written amendment, supplement, and modification in respect of any of the foregoingSeller.
(bc) Except as set forth in Part 4.16(bSection 3.16(c) of the Parent Disclosure Schedule, to the Knowledge of Seller, each Contract identified or required to be identified in Part 4.16(aSection 3.16(a) of the Parent Disclosure Schedule is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(aSection 3.16(d) of the Disclosure Schedule:
(i) each Acquired Company is, and at anytime since December 31, 1999 has been, Seller is in compliance in all material respects with all applicable the terms and requirements of each such Contract under which such Acquired Company Seller has or had any obligation or liability or by which Seller or any of the assets owned or used by Seller is party toor was bound;
(ii) to Parent’s Knowledgethe Knowledge of Seller, each other person that has or had any obligation or liability under any Contract under which Seller has or had any rights is in compliance in all material respects with the terms and requirements of such Contract; and
(iii) to the Knowledge of Seller, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)time) will may result in a violation or Breach of, or give breach of any Acquired Company, or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or to cancel, terminate or modify any such Contracts (other than Contracts which are terminable without cause in accordance with their terms); and
(iii) no Acquired Company has given to, or received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;25,000.00.
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,000;25,000.00.
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,000;25,000.00.
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 25,000.00 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00025,000.00;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the 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 the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) no Seller (and no Related Person of any Acquired Company 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 by the Company;; and
(xiiii) each written amendmentto the Knowledge of Sellers, supplementno officer, and modification in respect of any director, agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired to the Company is, and at anytime all times since December 31January 1, 1999 2004 has been, in compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Sellers' Knowledge, each other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since January 1, 2004 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) to Sellers' Knowledge, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31January 1, 19992004, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess Person and, to the Knowledge of US $100,000Sellers and the Company, no such Person has made written demand for such renegotiation.
(ef) To Parent’s 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 to the Sellers' Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into without the commission of any act alone or in writingconcert 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: Stock Purchase Agreement (Allis Chalmers Energy Inc.)
Contracts; No Defaults. (a) Part 4.16(aSchedule 3.14(a) of the Parent Disclosure Schedule contains a complete and accurate list, and Seller has delivered or made available to Buyer copies, of:
(i) each Gift Contract (other than open purchase or sales orders entered into in the ordinary course of business) that involves performance of services or delivery of goods, services goods or materials (in by any 12-month period) by one or more Acquired Companies Gift Entity of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof200,000;
(ii) each Gift Contract (other than open purchase or sales orders entered into in the ordinary course of business) that involves performance of services or delivery of goods or materials to one or more Acquired Companies an applicable Gift Entity of an amount or value in U.S. excess of US $50,000200,000;
(iii) each Gift Contract that was not entered into in the Ordinary Course ordinary course of Business business and that involves expenditures or receipts of one or more Acquired Companies any Gift Entity in excess of US $50,000200,000;
(iv) each lease agreement, license, installment and conditional sale agreement, and other Gift Contract affecting the ownership of, leasing of, title to, use of, of or any leasehold or other interest in, in any real or personal property (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Software200,000).;
(v) each licensing agreement or other Gift Contract with respect to patentsany labor union, trademarks, copyrightsworks counsel, or other intellectual propertyemployee representative of a group of employees relating to wages, including agreements with current or former employees (hours and other than their employment contracts), consultants, or contractors regarding the appropriation or the nondisclosure conditions of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)employment;
(vi) each joint venture, partnership, and any other Contracts Gift Contract (however named) involving a sharing of profits, losses, costs or Liabilities liabilities by any Acquired Company, Gift Entity with any other Person;
(vii) each Gift Contract containing covenants that in any way purport to restrict any Gift Entity’s activity in any material respect with respect to the business activity of any Acquired Company Gift Business or limit the freedom of any Acquired Company to engage Gift Entity in any line of business or material respect to compete with any PersonPerson with respect to any aspect of the Gift Business;
(viii) each Gift Contract providing reasonably likely to provide for commissions payments to or by any Person in excess of $200,000 based on sales, purchases or profits, other than direct payments for goodsgoods or payments of employee sales commissions;
(ix) each Gift Contract for capital expenditures in excess of US $50,000200,000;
(x) each written warranty, guaranty, any standard form of purchase and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company other than sales orders generally used in the Ordinary Course of Gift Business;; and
(xi) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, supplement and modification in respect of any of the foregoing. The Contracts described in Sections 3.14(a)(i) - (ix) and (xi) shall be referred to collectively as the “Material Contracts”. All written Material Contracts have been made available to Buyer.
(b) Except as set forth in Part 4.16(b) on Schedule 3.14(b), to the Knowledge of the Parent Disclosure ScheduleSeller, each Material Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule is valid and in full force and effect, and is enforceable against the Gift Entity party thereto in accordance with its terms.
(c) To the Knowledge of the Seller, there are no oral Material Contracts.
(d) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure Schedule:
on Schedule 3.14(d): (i) each Acquired Company isnone of the Gift Entities has violated or breached, and at anytime since December 31or committed any material default under, 1999 any Material Contract to which it is a party; and, to the Knowledge of the Seller, no other Person has beenviolated or breached, in compliance with all applicable terms and requirements of each such Contract under which such Acquired Company is party to;
or committed any default under, any Material Contract; (ii) to Parent’s Knowledgethe Knowledge of the Seller, no event has occurred occurred, and no circumstance or circumstances exists condition exists, that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)time) will or would be reasonably likely to, (A) result in a material violation or Breach ofbreach of any of the provisions of any Material Contract, or (B) give any Acquired Company, or any other Person party to such Contracts, the right to declare receive or require a default material rebate, chargeback, penalty or exercise change in delivery schedule under any remedy underMaterial Contract, or (C) give any Person the right to accelerate the maturity or performance of, of any Material Contract or (D) give any Person the right to cancel, terminate or modify in any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)material respect any Material Contract; and
and (iii) no Acquired Company has given to, or received from neither the Seller nor any other Person, at anytime since December 31, 1999, Gift Entity a party thereto has received any written notice regarding any actual, alleged, possible, actual or potential possible material violation or Breach breach of, or default under, any Material Contract, the subject of which notice has not been resolved as required thereby or otherwise to the satisfaction of the party sending such Contractnotice.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Shareholder's Disclosure Schedule Letter contains a complete and accurate list, and Shareholder has delivered or made available to Parent true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof10,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00010,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00010,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Property;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viii) each Contract providing for commissions to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each Contract for capital expenditures in excess of US $50,000;
(x) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company other than in the Ordinary Course of Business;
(xi) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b) of the Parent Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effect.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure Schedule:
(i) each Acquired Company is, and at anytime since December 31, 1999 has been, in compliance with all applicable terms and requirements of each such Contract under which such Acquired Company is party to;
(ii) to Parent’s Knowledge, no event has occurred or circumstances exists that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)) will result in a violation or Breach of, or give any Acquired Company, or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or to cancel, terminate or modify any such Contracts (other than Contracts which are terminable without cause in accordance with their terms); and
(iii) no Acquired Company has given to, or received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Sources: Merger Agreement (Packaged Ice Inc)
Contracts; No Defaults. (a) Part 4.16(aSchedule 2.16(a) of the Parent Disclosure Schedule contains a complete and accurate list, and copies, oflist of :
(i) each Contract that involves performance of services or delivery of goods, services goods or materials (in by any 12-month period) by one or more Acquired Companies Company for a period exceeding three months of an amount or value in excess of US $50,000; providedUS$1,000,000, however, with respect or which represents in fact a single source of supply of any raw materials to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereofany Acquired Company;
(ii) each Contract that involves performance of services or delivery of goods or materials to one or more any Acquired Companies Company of an amount or value in excess of US $50,000US$1,000,000;
(iii) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more any Acquired Companies Company in excess of US $50,000US$500,000;
(iv) each lease 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 right in, any real or personal property (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 US$1,000,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(v) each licensing agreement or other Contract with respect to patents, trademarks, copyrights, copyrights or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, consultants or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, partnership and any other Contracts Contract (however named) involving a sharing of profits, losses, costs or Liabilities liabilities by any Acquired Company, Company with any other Person;
(viiviii) 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 Company to engage (subject to applicable law) in any line of business or to compete with any Person;
(viiiix) each Contract providing for commissions payments to or by any Person based on sales, purchases or profitsprofits in excess of US$500,000, other than direct payments for goods;
(ixx) each power of attorney granted by the Acquired Companies that is currently effective and outstanding;
(xi) each Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired Company to be responsible for consequential and/or unforeseen damages;
(xii) each Contract for capital expenditures in excess of US $50,000US$500,000;
(xxiii) each written warranty, guaranty, and or guaranty and/or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company other than in the Ordinary Course of Business;
(xixiv) to the Knowledge of the Seller and based on the cost structure in effect at the time of execution, each Contract that involves the sale or the purchase of goods by any Acquired Company of an amount or value in excess of US$500,000 and that would give rise to a negative operating profit margin for any Acquired Company;
(xv) each Contract with that require any Acquired Company to sell or purchase any products or services exclusively to or from any Person, or sell or purchase a minimum quantity of any products or services to or from any Person; and
(xvi) each private label Contract by which any Acquired Company manufactures products to be sold as products of a third party, or by which an Acquired Company procures finished goods to be sold as its own products;
(xvii) each Contract since January 1, 2004 by which any Acquired Company was acquired by Seller or a Related Person, or by which any Acquired Company acquired a business, or by which any Acquired Company sold a business;
(xviii) each Fixed Price Contract and Derivative Contract; and
(xix) each amendment, supplement and modification in respect of any of the foregoing. Schedule 2.16(a) sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of each Acquired Company under the Contracts, if any, and the Acquired Company's office where details relating to the Contracts are located.
(b) Except as set forth in Schedule 2.16(b):
(i) the Seller has not acquired (and no Related Person of the Seller has) any Acquired Company rights under, and the Seller has 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, any Acquired Company;; and
(xiiii) each written amendmentto the Knowledge of the Seller and the Acquired Companies, supplementno officer, and modification in respect 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 foregoingbusiness of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement or discovery.
(bc) Except as set forth in Part 4.16(b) of the Parent Disclosure ScheduleSchedule 2.16(c), each Contract identified or required to be identified in Part 4.16(aSchedule 2.16(a) of the Parent Disclosure Schedule is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure Schedule:Schedule 2.16(d):
(i) each Acquired Company is, and at anytime since December 31January 1, 1999 2004 (and in respect of the Colombian Target, since February 12, 2007) has been, in full compliance in all material respects with all applicable terms and requirements of each Contract under which each Acquired Company has or had any obligation or liability or by which any Acquired Company or any of the assets owned or used by any Acquired Company is or was bound;
(ii) each other Person that has or since January 1, 2004 (and in respect of the Colombian Target, since February 12, 2007) had any obligation or liability under any Contract under which any Acquired Company has or had any rights is, and at all times has been, in all material respects in full compliance with all applicable terms and requirements of each such Contract under which such Acquired Company is party toContract;
(iiiii) to Parent’s Knowledge, no event has occurred since January 1, 2004 (and in respect of the Colombian Target, since February 12, 2007) or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Contract; and
(iiiiv) no Acquired Company since January 1, 2004 (and in respect of the Colombian Target, since February 12, 2007) has given to, to or received from any other Person, at anytime since December 31, 1999any time, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, possible or potential material violation or Breach of, or default under, breach any such Contract.
(de) There are no existing renegotiations with respect of, or to customer Contracts with respect the Knowledge of the Seller or the Acquired Companies attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company in excess of US $100,000under current or completed Contracts with any Person, and no such Person has made written demand for such renegotiation since December 31, 2006.
(ef) To Parent’s KnowledgeThe Contracts relating to the purchase, sale, design, manufacture or provision of products or services by or to each 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 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.
(g) Each Acquired Company has put in place, appropriate Derivative Contracts to, as of December 1, 2007, hedge the exposure of such Acquired Company to variations in the cost of the quantity of metals incorporated into products sold under 80% of the Fixed Price Contracts having a sales value over US$200,000 (and since December 1, 2007, will have hedged the exposure of such Acquired Company to variations in the cost of the quantity of metals incorporated into products sold under all the Fixed Price Contracts which any having a sales value over US$200,000). Furthermore, the Brazilian Target has put in place, appropriate Derivative Contracts to hedge the exposure of such Acquired Company to the foreign exchange risk associated with the cost of procuring in Dollars (in respect to Reais – the legal currency of Brazil.
(h) No Acquired Company is a party to are any outstanding Derivative Contract except those put in writing place to hedge the exposure of such Acquired Company to variation in metal cost and all and any amendments, settlements and modifications to any Contracts have been made in writingassociated foreign exchange risk.
Appears in 1 contract
Sources: Purchase Agreement (Madeco Sa)
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Seller have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof10,000.00;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00010,000.00;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00010,000.00;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000.00 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of the Company, the Seller or any Acquired Affiliate of the Company or limit the freedom of the Company, the Seller or any Acquired Affiliate of the Company to engage in any line of business or to compete with any Person;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00010,000.00;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the 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 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 Seller) has or may acquire any Acquired Company 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 assets owned or used by, any Acquired by the Company;; and
(xiiii) each written amendmentno officer, supplementdirector, and modification in respect of any agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31January 1, 1999 has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since January 1, 1999 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31January 1, 1999, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are has been entered into in writing the Ordinary Course of Business and all and any amendments, settlements and modifications to any Contracts have been made entered into without the commission of any act alone or in writingconcert 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
Contracts; No Defaults. (a) Part 4.16(aSchedule 3.20(a) of the Parent Disclosure Schedule contains a an accurate and complete and accurate list, and Seller has delivered to Buyer true, accurate and complete copies, ofof each Seller Contract:
(i) each Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies Seller of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereofDollars ($ );
(ii) each Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies Seller of an amount or value in excess of US $50,000Dollars ($ );
(iii) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies Seller in excess of US $50,000Dollars ($ );
(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, in any real or personal property (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Software).property;
(v) each licensing agreement with any labor union or other Contract with respect employee representative of a group of employees relating to patentswages, trademarkshours, copyrights, or and other intellectual property, including agreements with current or former employees (other than their employment contracts), consultants, or contractors regarding the appropriation or the nondisclosure conditions of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)employment;
(vi) each joint venturerelating to bonus, partnershippension, and profit sharing, retirement or any other Contracts form of deferred compensation plan or any stock purchase, stock option or similar plan or practice, whether formal or informal, or any severance agreement or arrangement;
(vii) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, Seller with any other Person;
(viiviii) 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;
(viiiix) each Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each Contract constituting a power of attorney of Seller that is currently (or could become in the future) effective and outstanding;
(xi) for capital expenditures in excess of US $50,000Dollars ($ );
(xxii) each written warrantyfor the employment of any officer, guaranty, and individual employee or other similar undertaking person on a full time, part time or consulting basis or providing for the payment of any cash or other compensation or benefits upon the sale of the Business;
(xiii) pursuant to which any current or former employee is entitled to payment for a covenant not to compete with Seller;
(xiv) relating to any Indebtedness of Seller or relating to the borrowing of money or to mortgaging, pledging or otherwise placing an Encumbrance on any of the Assets or any letter of credit arrangements;
(xv) relating to any license or royalty agreements;
(xvi) relating to any nondisclosure or confidentiality agreements;
(xvii) relating to any guaranty of any material obligation for borrowed money or otherwise, other than endorsements made for collection;
(xviii) relating to any distribution arrangement;
(xix) with the same party continuing over a period of more than six (6) months from the date or dates thereof, not terminable by Seller upon thirty (30) days’ or less notice without penalty;
(xx) for the marketing, sale, advertising or promotion of the Business’ products or services, if such Seller Contract is material to the Business;
(xxi) with any officer, director, partner or other Related Person;
(xxii) for any warranty agreement with respect to contractual performance products delivered or services rendered or any indemnity agreement with any supplier or customer under which Seller is obligated to indemnify such supplier or customer against liability claims;
(other than with respect xxiii) relating to Intellectual Property Assets disclosed ownership of or investments in Part 4.20 any business or enterprise, including investments in partnerships, joint ventures and minority equity investments;
(xxiv) relating to any settlement, conciliation or similar agreement;
(xxv) in the form of Seller’s standard warranty terms for the Parent Disclosure ScheduleBusiness;
(xxvi) extended by any Acquired Company other than that is otherwise material to the Business, whether or not entered into in the Ordinary Course of Business;; and
(xixxvii) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Schedule 3.20(a) sets forth reasonably complete details concerning such Contracts, including the parties to, and dates and titles of, the Contracts and, with regard to oral Contracts, a description of the obligations under and the subject matter of such Contracts.
(b) Except as set forth in Part 4.16(b) Schedule 3.20(b), no Related Person or stockholder of the Parent Disclosure ScheduleSeller has or may acquire any rights under, each Contract identified and no Related Person or required stockholder of Seller has or may become subject to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effectany Liability under, any Seller Contract.
(c) Except as set forth in Part 4.16(cSchedule 3.20(c):
(i) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(aSchedule 3.20(a) and that is to be assigned to or assumed by Buyer under this Agreement (each an “Assigned Contract”) is identified as such on Schedule 3.20(a) with an asterisk, in full force and effect and is valid and enforceable in accordance with its terms except as the enforcement thereof may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors’ rights generally;
(ii) each Assigned Contract is assignable by Seller to Buyer without the consent of any other Person; and
(iii) to the Disclosure Schedule:Knowledge of Seller, no Assigned Contract will upon completion or performance thereof have a Material Adverse Effect on Seller.
(d) Except as set forth in Schedule 3.20(d):
(i) each Acquired Company Seller is, and at anytime all times since December 31, 1999 has been, in compliance with all applicable terms and requirements of each such Contract under which such Acquired Company is party toAssigned Contract;
(ii) to Parent’s Knowledgeeach other Person that has or had any Liability under any Assigned Contract is, and at all times since , has been in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, Seller or any other Person party to such Contracts, 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 terminate, or modify any such Contracts Assigned Contract;
(other than Contracts which are terminable iv) no event has occurred or circumstance exists under or by virtue of any Seller Contract that (with or without notice or lapse of time) would cause in accordance with their terms)the creation of any Encumbrance affecting any of the Assets; and
(iiiv) no Acquired Company Seller has not given to, to or received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any such Contract.time since
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to Seller under current or completed Seller Contracts with any Acquired Company in excess of US $100,000Person having the contractual or statutory right to demand or require such renegotiation, and no such Person has made written demand for such renegotiation.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Sources: Asset Purchase Agreement
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and copiesSellers have delivered to Buyer true and complete copies of, or in the case of any verbal arrangements that would materially impact the Business of the Company, a complete summary of all material terms of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies of an amount or value in excess of US Five Thousand Dollars ($50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof5,000);
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies of an amount or value in excess of US Five Thousand Dollars ($50,0005,000);
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies in excess of US Five Thousand Dollars ($50,0005,000);
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US Five Thousand Dollars ($50,000, (25,000) Intellectual Property Assets disclosed in Part 4.20 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired Company to be responsible for consequential damages;
(xii) each Applicable Contract for capital expenditures in excess of US Five Thousand Dollars ($50,000;5,000); (i)
(xxiii) each written warranty, guaranty, and or other similar undertaking not otherwise referenced above with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b3.17(b) of the Parent Disclosure ScheduleLetter:
(i) no Seller (and no Related Person of Seller) has or may acquire any rights to purchase the business of, each Contract identified or required to be identified in Part 4.16(a) any of the Parent Disclosure Schedule assets owned or used by, any Acquired Company or any of the Capital Stock of t he Acquired Company; 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 full force and effector 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 4.16(c3.17(c) of the Parent Disclosure ScheduleLetter, with respect to each Applicable Contract identified or required to be identified in Part 4.16(a3.17(a) of the Disclosure ScheduleLetter is in full force and effect and is valid and enforceable in accordance with its terms, except as may be otherwise provided under the bankruptcy laws or rules of equity.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, and at anytime since December 31, 1999 has been, is in material compliance with all applicable terms and requirements of each such Applicable 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 party toor was bound;
(ii) to Parent’s Knowledge, each other Person that has or had any obligation or liability under any Applicable Contract under which an Acquired Company has or had any rights in material compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired Company has given to, to or received from any other Person, at anytime any time since December 31January 1, 19992003, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Applicable Contract.
(de) There To Sellers' Knowledge, there are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company in excess of US $100,000under current or completed Applicable Contracts with any Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any or provision of services by the Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts Companies have been made entered into in writingthe 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.
Appears in 1 contract
Sources: Stock Purchase Agreement (Bridge Street Financial Inc)
Contracts; No Defaults. (a) Part 4.16(a3.16(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and the Company has delivered to Parent true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof25,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00025,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00010,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 25,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)Employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other Employee representative of a group of Employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney executed by the Company that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00010,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b3.16(b) of the Parent Disclosure ScheduleLetter, each Applicable Contract identified or required to be identified in Part 4.16(a3.16(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable against the Company in accordance with its terms.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.16(c) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31February 5, 1999 1997 has been, in compliance with all applicable terms and requirements of each such Applicable Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgethe Knowledge of the Company, each other Person that has or had any obligation or liability under any Applicable Contract under which the Company has or had any rights is, and at all times since the Company's inception has been, in compliance with all applicable terms and requirements of such Applicable Contract;
(iii) to the Knowledge the Company, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not been given to, or received from any other Person, at anytime since December 31, 1999, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Applicable Contract.
(d) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Applicable Contracts with any Acquired Person and no such Person has made written demand to the Company in excess of US $100,000for such renegotiation.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Sources: Agreement and Plan of Acquisition and Arrangement (Infospace Com Inc)
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof10,000.00;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00010,000.00;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies by the Company in excess of US $50,00010,000.00;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000.00 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure nondisclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00010,000.00;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the 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 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 Acquired Company 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 assets owned or used by, any Acquired the Company;; and
(xiiii) each written amendmentto the Knowledge of Sellers and the Company, supplementno member, and modification in respect of any agent, employee, consultant, or contractor of the foregoingCompany is bound by any Contract that purports to limit the ability of such member, 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.
(bc) Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31January 1, 1999 2003 has been, in full compliance with all applicable material terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since January 1, 2003 has been, in full compliance with all material terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31January 1, 19992003, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach material violation, breach of, or default under, any such Applicable Contract.
(dv) There there are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess Person and, to the Knowledge of US $100,000Sellers and the Company, no such Person has made written demand for such renegotiation.
(e) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(aSection 3.17(a) of the Parent Disclosure Schedule contains a complete and accurate list, and the Shareholders have made available to the Buyer true and complete copies, of:
(i) each Contract that involves performance of services or delivery of goods, services or materials (in any 12-month period) by one or more Acquired Companies of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies by the Company of an amount or value in excess of US $50,00010,000 which were not purchase orders received in the Ordinary Course of Business;
(iiiii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00010,000;
(iviii) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(viv) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for that is used in and is material to the following: (1) Intellectual Property Assets disclosed in Part 4.20 business of the Parent Disclosure Schedule Company;
(v) each collective bargaining agreement and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vi) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(vii) 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;
(viii) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goodsgoods in excess of $10,000.00;
(ix) each power of attorney that is currently effective and outstanding;
(x) 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 Applicable Contract for capital expenditures in excess of US $50,00010,000;
(xxii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiii) each Contract with amendment, supplement, and modification whether oral or written in respect of any of the foregoing.
(b) To the Shareholders' Knowledge, except as set forth in Section 3.17(b) of the Disclosure Schedule:
(i) Neither the Shareholders nor any Related Person of the Shareholders has or may acquire any Acquired Company rights under, and neither the Shareholders nor any Related Person of the Shareholders have or may become subject to any obligation or liability under, any Contract (other than this Agreement) that relates to the business of, or any of the assets owned or used by, any Acquired the Company;; and
(xiiii) each written amendmentNo officer, supplementdirector, and modification in respect of any agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(bSection 3.17(c) of the Parent Disclosure Schedule, to the Knowledge of the Shareholders, each Contract identified or required to be identified in Part 4.16(aSection 3.17(a) of the Parent Disclosure Schedule is in full force and effecteffect and is valid and enforceable in accordance with its terms except as may be limited by applicable bankruptcy, reorganization, insolvency or moratorium laws, or other laws affecting the enforcement of creditor's rights or by the principles governing the availability of equitable remedies.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(aSection 3.17(d) of the Disclosure ScheduleSchedule to the Knowledge of the Shareholders:
(i) each Acquired the Company is, and at anytime since December 31, 1999 all times has been, in material compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound, except where the failure to comply does not have a material adverse effect on the business, assets or prospects of the Company;
(ii) each other Person that has or had any obligation or liability under any Contract under which the 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 except where the failure to Parent’s Knowledgecomply does not have a material adverse effect on the business, assets or prospects of the Company;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a material violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause Applicable Contract for amounts in accordance with their terms)excess of $10,000; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, Person at anytime since December 31, 1999, any written time any notice or other communication (whether oral or written) regarding any actual, alleged, possible, possible or potential material violation or Breach breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledgethe Knowledge of the Shareholders, all 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 which with any Acquired Person and, to the Knowledge of the Shareholders, 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 is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof10,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00010,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00010,000;
(iv) each lease agreementlease, rental or occupancy Contract, license, installment and conditional sale agreementContract, 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 5,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00010,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;
(xixiv) any Contract to purchase or otherwise acquire or sell or otherwise dispose of any interest in real property pertaining to the Company;
(xv) any stock purchase agreements, asset purchase agreements and other acquisition or divestiture agreements relating to the acquisition, lease or disposition by the Company of any of the assets of the Company, in each case (A) which was entered into by the Company after December 31, 2003, or (B) under which any Seller has any ongoing indemnification or other material obligations;
(xvi) any Contract relating to the location of employees or minimum number of employees to be employed with respect to the Company;
(xvii) any loan agreement, note, mortgage, indenture, security agreement, or guarantee of the obligations of a third Person which relates to the Company;
(xviii) any settlement agreement to which the Company is a party and which was entered into on or after December 31, 2003;
(xix) any agreements that are material to the Company; and
(xx) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the 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 the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) no Seller (and no Related Person of any Acquired Company Seller) has or may acquire any rights under, and no Seller has or may become subject to any Liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired the Company;; and
(xiiii) each written amendmentto the Knowledge of Sellers and the Company, supplementno officer, and modification in respect of any director, agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31, 1999 2003 has been, in compliance with all applicable material terms and requirements of each such Contract under which such Acquired the Company has or had any Liability or by which the Company or any of the assets owned or used by the Company is party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any Liability under any Contract under which the Company has or had any rights is, and at all times since December 31, 2003 has been, in compliance with all material terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31, 1999, 2005 any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess Person and, to the Knowledge of US $100,000Sellers and the Company, no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;25,000.00.
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,000;25,000.00.
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,000;25,000.00.
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 25,000.00 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00025,000.00;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the 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 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 any Acquired Company 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 by the Company;; and
(xiiii) each written amendmentto the Knowledge of Sellers and the Company, supplementno officer, and modification in respect of any director, agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effect.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure Schedule:
(i) each Acquired Company isthere is no existing default thereunder, and at anytime since December 31, 1999 has been, in compliance with all applicable terms is valid and requirements of each such Contract under which such Acquired Company is party to;
(ii) to Parent’s Knowledge, no event has occurred or circumstances exists that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)) will result in a violation or Breach of, or give any Acquired Company, or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or to cancel, terminate or modify any such Contracts (other than Contracts which are terminable without cause enforceable in accordance with their its terms); and
(iii) no Acquired Company has given to, or received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess Person and, to the Knowledge of US $100,000Sellers and the Company, no such Person has made written demand for such renegotiation.
(e) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Sources: Stock Purchase Agreement (Allis Chalmers Energy Inc.)
Contracts; No Defaults. (a) Part 4.16(aSCHEDULE 4.18(a) of the Parent Disclosure Schedule contains a complete and accurate list, and Shareholder has delivered to Buyer true and complete copies, of:
(i) each Each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Seller of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;
(ii) each Each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Seller of an amount or value in excess of US $50,000;
(iii) each Each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Seller in excess of US $50,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, 10,000 and with terms of less than one (21) Intellectual Property Assets disclosed in Part 4.20 of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareyear).;
(v) each Each licensing agreement or and other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each Each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees relating to wages, hours, and other conditions of employment;
(vii) Each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Seller with any other Person;
(viiviii) each Each Applicable 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 the Seller to engage in any line of business or to compete with any Person;
(viiiix) each Each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each Each power of attorney that is currently effective and outstanding;
(xi) Each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by the Seller to be responsible for consequential damages;
(xii) Each Applicable Contract for capital expenditures in excess of US $50,00010,000;
(xxiii) each Each written warranty, guaranty, and or and/or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company the Seller other than in the Ordinary Course of Business;; and
(xixiv) each Contract with any Related Person Each amendment, supplement, and modification (whether oral or written) in respect of any Acquired Company of the foregoing.
(b) Except as set forth in SCHEDULE 4.18(b):
(i) Shareholder has not and may not acquire any rights under, and Shareholder has not and 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, any Acquired Company;the Seller; and
(xiiii) each written amendmentTo the Knowledge of Shareholder and the Seller, supplementno officer, and modification in respect of any director, agent, employee, consultant, or contractor of the foregoing.
Seller is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (bA) Except as set forth engage in Part 4.16(b) or continue any conduct, activity, or practice relating to the business of the Parent Disclosure ScheduleSeller, each Contract identified or required (B) assign to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effectSeller or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 4.16(cSCHEDULE 4.18(c) of the Parent Disclosure Schedule, with respect to each Shareholder's and Seller's Knowledge:
(i) Each Contract identified or required to be identified in Part 4.16(aSCHEDULE 4.18(a) of is in full force and effect and is valid and enforceable in accordance with its terms; and
(ii) No Contract identified or required to be identified in SCHEDULE 4.18(a) contains any term or requirement that is unreasonable, extraordinary, or not customary in the Disclosure Scheduleindustries in which the Seller operates.
(d) Except as set forth in SCHEDULE 4.18(d) since March 30, 1998:
(i) each Acquired Company To Shareholder's and Seller's Knowledge, the Seller is, and at anytime since December 31, 1999 has been, in material compliance with all applicable terms and requirements of each such Contract under which such Acquired Company the Seller has or had any obligation or liability or by which the Seller or any of the assets owned or used by the Seller is party toor was bound;
(ii) to Parent’s To Shareholder's and Seller's Knowledge, each other Person that has or had any obligation or liability under any Contract under which the Seller has or had any rights is, and has been, in material compliance with all applicable terms and requirements of such Contract;
(iii) To Shareholder's and Seller's Knowledge, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Seller or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired Company The Seller has not given to, or to nor received from any other Person, at anytime since December 31, 1999, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Seller under current or completed Contracts with any Acquired Company in excess of US $100,000Person having the contractual or statutory right to demand or require such renegotiation and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired Company is a party to are in writing and all and any amendmentsdesign, settlements and modifications to any Contracts manufacture, or provision of products or services by the Seller have been made entered into in writingthe 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.
Appears in 1 contract
Sources: Asset Purchase Agreement (Morton Industrial Group Inc)
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof10,000.00;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00010,000.00;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00010,000.00;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 5,000.00 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00010,000.00;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the 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 the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) none of Sellers (and no Related Person of Sellers) have or may acquire any Acquired Company 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 the Company;; and
(xiiii) each written amendmentto the Knowledge of Sellers and the Company, supplementno officer, and modification in respect of any director, agent, employee, consultant, or contractor of the foregoingCompany is bound by any Contract that purports to limit the ability of such officer, member, manager, 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.
(bc) Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31January 1, 1999 2004, has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times since January 1, 2004, has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31January 1, 19992004, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(aSchedule 3.16(a) of the Parent Disclosure Schedule contains a complete and accurate list, and Seller has delivered or caused to be delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof5,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,0005,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,0005,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 1,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(vii) 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;
(viii) each Applicable Contract providing for commissions 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 or to the Company that is currently effective and outstanding;
(x) 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 Applicable Contract for capital expenditures in excess of US $50,0002,500;
(xxii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiii) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Schedule 3.16(b):
(i) No Seller (nor any Related Person of any Acquired Company Seller) has or may acquire any rights under, and no Seller has or may become subject to any obligation or liability or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired the Company;; and
(xiiii) each written amendment, supplement, and modification in respect of any No officer or employee of the foregoingCompany is 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 business of the Company, or (B) assign to the Company any rights to any invention, improvement, or discovery.
(bc) Except as set forth in Part 4.16(b) of the Parent Disclosure ScheduleSchedule 3.16(c), each Contract identified or required to be identified in Part 4.16(aSchedule 3.16
(a) of the Parent Disclosure Schedule is in full force and effect.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure Schedule:
(i) each Acquired Company is, effect and at anytime since December 31, 1999 has been, in compliance with all applicable terms is valid and requirements of each such Contract under which such Acquired Company is party to;
(ii) to Parent’s Knowledge, no event has occurred or circumstances exists that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)) will result in a violation or Breach of, or give any Acquired Company, or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or to cancel, terminate or modify any such Contracts (other than Contracts which are terminable without cause enforceable in accordance with their its terms); and
(iii) no Acquired Company has given to, or received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Seller has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof25,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00025,000;
(iii) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies The Company in excess of US $50,00025,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 25,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,00025,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the 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 the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) Seller (and no Related Person of either Seller) neither has nor may acquire any Acquired Company rights under, and Seller neither has nor 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 the Company;; and
(xiiii) each written amendmentto the Knowledge of Seller and the Company, supplementno officer, and modification in respect of any director, agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b3.17(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December March 31, 1999 has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which an the Company has or had any rights is, and at all times since March 31, 1999 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December March 31, 1999, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess Person and, to the Knowledge of US $100,000Seller and the Company, no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Shareholders' Disclosure Schedule Letter contains a complete and accurate list, and Shareholders have delivered or made available to Parent true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof10,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,00010,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,00010,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 10,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Property;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(vii) 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;
(viii) each Contract providing for commissions to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each Contract for capital expenditures in excess of US $50,000;
(x) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company other than in the Ordinary Course of Business;
(xi) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b) of the Parent Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effect.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure Schedule:
(i) each Acquired Company is, and at anytime since December 31, 1999 has been, in compliance with all applicable terms and requirements of each such Contract under which such Acquired Company is party to;
(ii) to Parent’s Knowledge, no event has occurred or circumstances exists that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)) will result in a violation or Breach of, or give any Acquired Company, or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or to cancel, terminate or modify any such Contracts (other than Contracts which are terminable without cause in accordance with their terms); and
(iii) no Acquired Company has given to, or received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Sources: Merger Agreement (Packaged Ice Inc)
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Seller has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance was not entered into in the Ordinary Course of services or delivery of goods, services or materials (in any 12-month period) by one or more Acquired Companies of an amount or value in excess of US $50,000; provided, however, with respect to all customer Business and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;
(ii) each Contract that involves performance of services or delivery of goods or materials by or to one or more Acquired Companies the Company of an amount or value in excess of US Five Thousand Dollars ($50,000;5,000.00),
(iiiii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US Five Thousand Dollars ($50,000;5,000.00),
(iviii) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US Five Thousand Dollars ($50,000, (25,000.00) Intellectual Property Assets disclosed in Part 4.20 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).,
(viv) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 intellectual property assets of the Parent Disclosure Schedule Company,
(v) each collective bargaining agreement and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software);other Applicable Contract to or with any labor union or other employee representative of a group of employees,
(vi) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;,
(vii) 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;,
(viii) each Applicable Contract providing for commissions 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) 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 Applicable Contract for capital expenditures in excess of US Five Thousand Dollars ($50,000;5,000.00),
(xxii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;, and
(xixiii) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b3.17(b) of the Parent Disclosure ScheduleLetter, Seller (and no 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 Company, and
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy or other laws affecting the enforcement of creditors' rights generally.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime since December 31, 1999 all times has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party to;or was bound,
(ii) to Parent’s Knowledgeeach other Person that has or had any material obligation or material liability under any Contract under which the Company has or had any rights is, and at all times has been, in full compliance with all applicable terms and requirements of such Contract,
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may reasonably contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, the right to reasonably declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate terminate, or modify modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms); Applicable Contract, and
(iiiiv) no Acquired the Company has given to, to or received from any other Person, at anytime since December 31, 1999, any written time any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess Person and, to the Knowledge of US $100,000Seller and the Company, no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of US $50,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Software25,000).;
(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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the 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' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) no Seller (and no Related Person of any Acquired Company 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 assets owned or used by, any Acquired the Company;; and
(xiiii) each written amendmentno officer, supplementdirector, and modification in respect of any agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b) of the Parent Disclosure Schedule, each Each Contract identified or required to be identified in Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime since December 31, 1999 all times has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the Company has or had any rights is, and at all times has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired Company has given to, to or received from any other Person, at anytime since December 31, 1999, any written time any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess of US $100,000Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Sources: Stock Purchase Agreement (Home Products International Inc)
Contracts; No Defaults. (a) Part 4.16(a3.16(a) of the Parent Disclosure Schedule contains a complete and accurate list, and the Company has made available to Buyer true and complete copies, of:
(i) each Contract that is currently in effect and involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;
(ii) each Contract that is currently in effect and involves performance of services or delivery of goods or materials to one or more Acquired Companies the Company of an amount or value in excess of US $50,000;
(iii) each Contract that is currently in effect and that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies by the Company in excess of US $50,000;
(iv) each lease lease, rental or occupancy agreement, license, installment and conditional sale agreement, and any other Contract affecting the ownership of, leasing of, title to, use of, to or any leasehold or other interest in, any real or personal property (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 50,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless than one year).;
(v) each licensing agreement or other Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for other than the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Company’s form employee agreement;
(vi) each collective bargaining agreement and other Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person, other than the Company Operating Agreement;
(viiviii) 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;
(viiiix) each Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each unconditional power of attorney granted by the Company and that is currently effective and outstanding;
(xi) each Contract for capital expenditures in excess of US $50,000, other than in the Ordinary Course of Business;
(xxii) each written warranty, guaranty, and warranty or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) guaranty extended by any Acquired the Company other than in the Ordinary Course of Business;
(xixiii) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;ESD Contract; and
(xiixiv) each written amendment, supplement, and modification in respect of any of the foregoing. Each of the foregoing Contracts is referred to in this Agreement as an “Applicable Contract”.
(b) Except as set forth in Part 4.16(b) of the Parent Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effect.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.16(b) of the Disclosure Schedule:
(i) no member of the Seller Group (and no Related Person of either the Company or the Seller Group) has or may acquire any rights under, and no member of the Seller Group has or may become subject to any obligation or liability under, any Contract; and
(ii) to the Knowledge of Seller, no officer of the Company or Key Employee is bound by any Contract that purports to limit the ability of such Person 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 other than the Company’s form employee agreement.
(c) To the Knowledge of Seller and except as set forth in Part 3.16(c) of the Disclosure Schedule, each Acquired Applicable Contract identified or required to be identified in Part 3.16(a) of the Disclosure Schedule is in full force and effect and is valid and enforceable in accordance with its terms except as may be limited by bankruptcy, insolvency or other laws affecting creditors’ rights generally and by general principles of equity.
(d) Except as set forth in Part 3.16(d) of the Disclosure Schedule:
(i) with respect to each Applicable Contract, to the Knowledge of the Seller, the Company is, and at anytime all times since December 31, 1999 the date of inception of such Applicable Contract has been, in compliance in all material respects with all applicable terms and requirements of each such Contract under which such Acquired Company is party toApplicable Contract;
(ii) to Parent’s Knowledgethe Knowledge of Seller, each other Person that has any obligation or liability under any Applicable Contract under which the Company has any rights is in compliance in all material respects with all applicable terms and requirements of such Applicable Contract;
(iii) to the Knowledge of Seller, no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (including, without limitation, after giving effect time) would reasonably be expected to give the Contemplated Transactions)) will result in a violation Company or Breach of, or give any Acquired Company, or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms); andApplicable Contract;
(iiiiv) no Acquired neither the Company nor any member of the Seller Group has given to, or received from any other Person, at anytime since December 31, 1999, Person any written notice or other written communication regarding any actual, alleged, possible, or potential material violation or Breach breach of, or default under, any such Applicable Contract.;
(dv) There are the Company has no existing renegotiations with respect to customer outstanding Contracts with respect Seller, any Related Party of Seller or any officer, employee, agent, consultant, advisor, salesman, sales representative, distributor or dealer providing for the payment of any bonus or commission based on sales or earnings;
(vi) other than the Retention Agreements, the Company has no employment agreement, or any other agreement that contains any severance or termination pay liabilities or obligations;
(vii) the Company has no outstanding agreement to amounts paid or payable acquire any debt obligations of others;
(viii) the Company has no outstanding loan to any Acquired Person, except reimbursement of employee travel and other expenses reimbursable in accordance with Company policy and incurred in excess the Ordinary Course of US $100,000.Business of the Company;
(eix) To Parent’s Knowledgethe Company has no outstanding obligations or liabilities (whether absolute, all Contracts which accrued, contingent or otherwise), as guarantor, surety, co-signer, endorser, co-maker or otherwise in respect of the obligation of any Acquired Person, corporation, partnership, joint venture, association, organization or other entity; and
(x) the Company has no commitment or obligation to continue to utilize the services of, or otherwise to do business with, any licensor, vendor, supplier or licensee of the Company that is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writingnot terminable on thirty (30) days or less notice.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Techteam Global Inc)
Contracts; No Defaults. (a) Part 4.16(aSchedule 2.13(a) of the Parent Disclosure Schedule contains Schedules identifies each of the following Contracts to which the Company or the Seller (that relates to the Business) is a complete and accurate list, and copies, of:
party: (i) each Contract that involves the performance of services or delivery of goods, services goods or materials (in any 12-month period) by one Company, including for the sale of inventory at committed quantities or more Acquired Companies at committed prices, the performance of an amount or value which involves consideration in excess of US $50,000100,000, other than purchase orders received in the Ordinary Course of Business; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;
(ii) each Contract that involves the performance of services or delivery of goods or materials to one Company, including any purchase at a committed quantity or more Acquired Companies at a committed price, the performance of an amount or value which involves consideration in excess of US $50,000;
(iii) each Contract that was not entered into 100,000, other than purchase orders issued in the Ordinary Course of Business and that involves expenditures or receipts Business; (iii) for borrowed money, other than trade debt incurred by Company in the Ordinary Course of one or more Acquired Companies in excess of US $50,000;
Business; (iv) each lease agreementthe lease, license, installment installment, and conditional sale agreement, and other Contract sales affecting the ownership of, leasing of, title to, or use of, or of any leasehold or other interest in, any real or personal property (except for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate with annual payments in excess of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Software).
100,000; (v) each licensing agreement or other Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (Company Intellectual Property to which Company is a party other than their employment contracts), consultants, or contractors regarding the appropriation or the nondisclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly commercially available software programs, such as retail shrink-wrap and retail off the shelf Software);
software; (vi) each joint venture, partnership, and any venture or partnership or other Contracts similar arrangement involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, Company with any other Person;
; (vii) 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;
(viii) each Contract providing for commissions to or by any Person based on sales, purchases or profits, other than direct payments for goods;
(ix) each Contract for capital expenditures in excess of US $50,000;
100,000; (viii) guaranty with respect to performance of any other Person by Company; (ix) profit sharing, stock option, stock purchase, stock appreciation, deferred compensation, severance, or other plan or arrangement for the benefit of the current or former directors, officers, and employees of the Company; (x) each written warrantycollective bargaining agreements; (xi) for the employment of any individual on a full-time, guarantypart-time, consulting, or other basis providing annual compensation in excess of $75,000 or providing severance benefits; (xii) under which Company has advanced or loaned any amount to its directors, officers, and employees; (xiii) the subject matter of which is confidentiality or other similar undertaking non-competition except that which may be implied by law, including MEMBERSHIP INTEREST PURCHASE AGREEMENT 11 the Employee Non-Competes; (xiv) any lease agreements with respect to contractual performance (other than real property, including with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure ScheduleLeased Real Property; (xv) extended by any Acquired Company other than agreement that is not in the Ordinary Course of Business;
the operations of the Company that involves any transaction greater than $25,000 in value; (xixvi) the Employee Non-Competes; and (xvii) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification amendment in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(bSchedule 2.13(b) of the Parent Disclosure ScheduleSchedules, each Contract identified or required to be identified in Part 4.16(aSection 2.13(a) of the Parent Disclosure Schedule (i) is legal, valid, binding, in full force and effect and valid and enforceable against Company as a party thereto and, to Seller’s Knowledge, the other parties thereto, in accordance with its terms, except to the extent that the lack of validity or enforceability would not be Material to the Company or the Business, and (ii) the consummation of the transactions contemplated in this Agreement will not cause the failure of such Contract to be legal, valid, binding, in full force and effect, and enforceable on identical terms following the consummation of the transactions. The Seller has made available to the Buyer a correct and complete copy of each written Contract identified in Section 2.13(a) of the Disclosure Schedule.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(aSection 2.13(c) of the Disclosure Schedule:
Schedule (i) each Acquired of the Seller and the Company is, and at anytime since December 31, 1999 has been, is in compliance in all Material respects with all applicable terms and requirements each Contract identified in Section 2.13(a) of each such Contract the Disclosure Schedule under which such Acquired Company or the Seller has or had any obligation or liability or by which Company or the Seller is party to;
bound and (ii) to Parentthe Company’s or the Seller’s Knowledge, no event each other Person that has occurred any obligation or circumstances exists that (with or without notice liability under any Contract identified in Section 2.13(a) of the Disclosure Schedule under which the Seller or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)) will result in a violation or Breach of, or give any Acquired Company, or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or to cancel, terminate or modify any such Contracts (other than Contracts which are terminable without cause in accordance with their terms); and
(iii) no Acquired Company has given to, or received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any rights is in compliance in all Material respects with such Contract.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Thor Industries Inc)
Contracts; No Defaults. (a) Part 4.16(a3.17(a) of the Parent Disclosure Schedule Letter contains a complete and accurate listlist (excluding in each case Applicable Contracts that will be fully performed by all parties as of the Closing Date), and Sellers have made available to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies of the Company and its Subsidiaries of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies of the Company and its Subsidiaries of an amount or value in excess of US $50,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies of the Company and its Subsidiaries in excess of US $50,000;
(iv) each lease Applicable Contract in the form of a lease, rental or occupancy agreement, or 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 for the following: (1) personal property leases and installment and conditional sales agreements any such agreement having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Software).;
(v) each Applicable Contract that is a licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each Applicable Contract with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by the Company or any Acquired Company, of its Subsidiaries with any other Person;
(viiviii) each Applicable Contract containing covenants that in any way purport to restrict in any material respect the business activity of any Acquired the Company or any of its Subsidiaries or limit in any material respect the freedom of the Company or any Acquired Company of its Subsidiaries to engage in any line of business or to compete with any Person;
(viiiix) each material Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney granted by the Company or any of its Subsidiaries that is currently effective and outstanding;
(xi) each Applicable Contract for capital expenditures in excess of US $50,000;
(xxii) each material written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by the Company or any Acquired Company of its Subsidiaries other than in the Ordinary Course of Business;; and
(xixiii) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b3.17(b) of the Parent Disclosure ScheduleLetter:
(i) neither Delta Woodside nor Alchem (and no Related Person of either of them other than the Company) 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 or any of the Acquired Assets; and
(ii) no officer, director, or employee of the Company or any of its Subsidiaries is bound by any Contract that purports to limit in any respect the ability of such officer, director, or employee to (A) engage in or continue any conduct, activity, or practice relating to the business of the Company or any of its Subsidiaries, or (B) assign to the Company or any of its Subsidiaries 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 4.16(a3.17(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.17(d) of the Disclosure ScheduleLetter:
(i) the Company and each Acquired Company of its Subsidiaries is, and at anytime all times since December 31January 20, 1999 1993 has been, in full compliance in all respects with all applicable terms and requirements of each such Contract under which such Acquired company has or had any obligation or liability or by which the Company or any of its Subsidiaries or any of the assets owned or used by such company is party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which the Company or any of its Subsidiaries has or had any rights is, and at all times since January 20, 1993 has been, in full compliance in all respects with all applicable terms and requirements of such Contract;
(iii) no event has occurred since January 20, 1993 or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any of its Subsidiaries or other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired neither the Company nor any of its Subsidiaries has given to, to or received from any other Person, at anytime any time since December 31January 20, 19991993, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any amounts paid or payable to the Company or any Acquired Company in excess of US $100,000its Subsidiaries under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts its Subsidiaries have been made entered into in writingthe 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 4.16(a3.16(a) of the Parent Disclosure Schedule Letter contains a complete and accurate list, and Seller have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies the Company of an amount or value in excess of US $50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof5,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies The Company of an amount or value in excess of US $50,0005,000;
(iii) each Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies The Company in excess of US $50,0005,000;
(iv) each lease 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US $50,000, (2) Intellectual Property Assets disclosed in Part 4.20 5,000 and with terms of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareless 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 (other than their employment contracts)employees, consultants, or contractors regarding the appropriation or the nondisclosure non-disclosure of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and any other Contracts Applicable Contract (however named) involving a sharing of profits, losses, costs costs, or Liabilities liabilities by any Acquired Company, the Company with any other Person;
(viiviii) 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;
(viiiix) each Applicable Contract providing for commissions payments to or by any Person based on sales, purchases purchases, or profits, other than direct payments for goods;
(ixx) each power of attorney that is currently effective and outstanding;
(xi) 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;
(xii) each Applicable Contract for capital expenditures in excess of US $50,0005,000;
(xxiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired the Company other than in the Ordinary Course of Business;; and
(xixiv) each Contract with amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing.
(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 the Contracts are located.
(b) Except as set forth in Part 3.16(b) of the Disclosure Letter:
(i) Seller (and no Related Person of Seller) has not nor may Seller acquire any Acquired Company rights under, and Seller has not nor may he 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 the Company;; and
(xiiii) each written amendmentto the Knowledge of Seller and the Company, supplementno officer, and modification in respect of any director, agent, employee, consultant, or contractor of the foregoingCompany 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.
(bc) Except as set forth in Part 4.16(b3.16(c) of the Parent Disclosure ScheduleLetter, each Contract identified or required to be identified in Part 4.16(a3.16(a) of the Parent Disclosure Schedule Letter is in full force and effecteffect and is valid and enforceable in accordance with its terms.
(cd) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a3.16(d) of the Disclosure ScheduleLetter:
(i) each Acquired the Company is, and at anytime all times since December 31, 1999 1995 has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired 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 party toor was bound;
(ii) to Parent’s Knowledgeeach other Person that has or had any obligation or liability under any Contract under which an the Company has or had any rights is, and at all times since December 31, 1995 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstances circumstance exists that (with or without notice or the lapse of time (includingtime) may contravene, without limitationconflict with, after giving effect to the Contemplated Transactions)) will or result in a violation or Breach breach of, or give any Acquired Company, the Company or any other Person party to such Contracts, 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 modify, any such Contracts (other than Contracts which are terminable without cause in accordance with their terms)Applicable Contract; and
(iiiiv) no Acquired the Company has not given to, to or received from any other Person, at anytime any time since December 31, 19991995, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or Breach breach of, or default under, any such Contract.
(de) There are no existing renegotiations with respect of, attempts to customer Contracts with respect renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company under current or completed Contracts with any Acquired Company in excess Person and, to the Knowledge of US $100,000Seller and the Company, no such Person has made written demand for such renegotiation.
(ef) To Parent’s KnowledgeThe Contracts relating to the sale, all Contracts which any Acquired design, manufacture, or provision of products or services by the Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made entered into in writingthe 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.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Dynamic Health Products Inc)
Contracts; No Defaults. (a) Part 4.16(aSection 3.17(a) of the Parent Disclosure Schedule contains a an accurate and complete and accurate list, and Seller has delivered to Buyer accurate and complete copies, of:
(i) each Seller Contract that involves performance of services or delivery of goods, services goods or materials (in any 12-month period) by one or more Acquired Companies Seller of an amount or value in excess of US twenty-five thousand dollars ($50,000; provided, however, with respect to all customer and channel supply Contracts, each such Contract shall be listed and provided without regard to the value thereof25,000);
(ii) each Seller Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies Seller of an amount or value in excess of US twenty-five thousand dollars ($50,00025,000);
(iii) each Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies Seller in excess of US twenty-five thousand dollars ($50,00025,000);
(iv) each lease agreement, license, installment and conditional sale agreement, and other 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 for the following: (1) personal property leases and installment and conditional sales agreements having a value for the remaining term per item or aggregate payments of less than US twenty-five thousand dollars ($50,000, 25,000) and with a term of less than one (21) Intellectual Property Assets disclosed in Part 4.20 of Parent Disclosure Schedule and (3) commonly available Software programs, such as retail shrink-wrap and retail off the shelf Softwareyear).;
(v) each licensing agreement Seller Contract with any labor union or other Contract with respect Employee representative of a group of Employees relating to patentswages, trademarks, copyrights, or hours and other intellectual property, including agreements with current or former employees (other than their employment contracts), consultants, or contractors regarding the appropriation or the nondisclosure conditions of any of the Intellectual Property Assets (except for the following: (1) Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule and (2) commonly available software programs, such as retail shrink-wrap and retail off the shelf Software)employment;
(vi) each joint venture, partnership, and any other Contracts Seller Contract (however named) involving a sharing of profits, losses, costs or Liabilities liabilities by any Acquired Company, Seller with any other Person;
(vii) 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;
(viii) each Seller Contract providing for commissions to payments to, or by 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) each Seller Contract entered into other than in the Ordinary Course of Business that contains, or provides for, an express undertaking by Seller to be responsible for consequential damages;
(xi) each Seller Contract for capital expenditures in excess of US twenty-five thousand dollars ($50,00025,000);
(xxii) each Seller Contract not denominated in U.S. dollars;
(xiii) each written warranty, guaranty, and or guaranty and/or other similar undertaking with respect to contractual performance (other than with respect to Intellectual Property Assets disclosed in Part 4.20 of the Parent Disclosure Schedule) extended by any Acquired Company Seller other than in the Ordinary Course of Business;; and
(xixiv) each Contract with any Related Person of any Acquired Company that relates to the business of, or any of the assets owned or used by, any Acquired Company;
(xii) each written amendment, supplement, supplement and modification (whether oral or written) in respect of any of the foregoing.
(b) Except as set forth in Part 4.16(b) of the Parent Disclosure Schedule, each Contract identified or required to be identified in Part 4.16(a) of the Parent Disclosure Schedule is in full force and effect.
(c) Except as set forth in Part 4.16(c) of the Parent Disclosure Schedule, with respect to each Contract identified or required to be identified in Part 4.16(a) of the Disclosure Schedule:
(i) each Acquired Company is, and at anytime since December 31, 1999 has been, in compliance with all applicable terms and requirements of each such Contract under which such Acquired Company is party to;
(ii) to Parent’s Knowledge, no event has occurred or circumstances exists that (with or without notice or the lapse of time (including, without limitation, after giving effect to the Contemplated Transactions)) will result in a violation or Breach of, or give any Acquired Company, or any other Person party to such Contracts, the right to declare a default or exercise any remedy under, or to accelerate the performance of, or to cancel, terminate or modify any such Contracts (other than Contracts which are terminable without cause in accordance with their terms); and
(iii) no Acquired Company has given to, or received from any other Person, at anytime since December 31, 1999, any written notice regarding any actual, alleged, possible, or potential violation or Breach of, or default under, any such Contract.
(d) There are no existing renegotiations with respect to customer Contracts with respect to amounts paid or payable to any Acquired Company in excess of US $100,000.
(e) To Parent’s Knowledge, all Contracts which any Acquired Company is a party to are in writing and all and any amendments, settlements and modifications to any Contracts have been made in writing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Advanced Nutraceuticals Inc/Tx)