Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of: (i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,000; (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 $25,000; (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 $25,000; (iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year); (v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person; (viii) 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; (ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods; (x) 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 $10,000; (xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located. (b) Except as set forth in Part 3.17(b) of the Disclosure Letter: (i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and (ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery. (c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms. (d) Except as set forth in Part 3.17(d) of the Disclosure Letter: (i) each Acquired Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound; (ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract; (iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and (iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract. (e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation. (f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Sources: Stock Purchase and Shareholders' Agreement (Sibling Entertainment Group, Inc.)
Contracts; No Defaults. (a) Part Schedule 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered or made available to Buyer true and complete copies, of:of (in each case excluding purchase orders placed or received in the Ordinary Course of Business and Contracts which to the Knowledge of the Acquired Companies have been fully performed, where for this purpose a Contract will be considered to have been fully performed if the only remaining performance thereunder is payment to an Acquired Company of amounts included in such Company's accounts receivable):
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,00010,000;
(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 $25,00010,000;
(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 $25,00010,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 5,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any either Acquired Company with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any either Acquired Company or any Affiliate of an Acquired Company or limit the freedom of any either Acquired Company or any Affiliate of an Acquired Company to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) 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 either Acquired Company to be responsible for consequential damages;
(xii) each Applicable Contract for capital expenditures in excess of $10,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any either Acquired 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part Schedule 3.17(b) of the Disclosure Letter:):
(i) neither no Seller (and no Related Person of either Seller, other than the Acquired Companies) has or may acquire any rights under, and neither 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 either Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] , no officer, director, agent, employee, consultant, or contractor of any either Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any either Acquired Company, or (B) assign to any either Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part Schedule 3.17(c) of the Disclosure Letter), each Contract identified or required to be identified in Part Schedule 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its termsterms (subject to the qualification which appear in Exhibit 7.4(a)).
(d) Except (x) as respects purchase orders placed or received in the Ordinary Course of Business and Contracts which to the Knowledge of the Acquired Companies have been fully performed (where for this purpose a Contract will be considered to have been fully performed if the only remaining performance thereunder is payment to an Acquired Company of amounts included in such Company's accounts receivable) and (y) as set forth in Part Schedule 3.17(d) of the Disclosure Letter:):
(i) To the Knowledge of the Acquired Companies, each Acquired Company is, and at all times since January 1, 2000, has been, is in full substantial compliance with all applicable material terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) to the Knowledge of the Acquired Companies each other Person that has or had any material obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, is in full substantial compliance with all applicable material terms and requirements of such Contract;
(iii) to the Knowledge of the Acquired Companies no event has occurred or circumstance exists that (with or without notice or lapse of time) may materially contravene, materially conflict with, or result in a material violation or breach of, or give any either Acquired Company or other Person the right to declare a default or exercise any material remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or materially modify, any Applicable Contract; and
(iv) to the Knowledge of the Acquired Companies, no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential material violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any either Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, Acquired Companies, no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a2.16(a) of the Disclosure Letter Schedule contains a complete and accurate list, and Sellers have Seller has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies to Seller of an amount or value in excess of $25,00010,000;
(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 $25,000;
(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 Seller in excess of $25,00010,000;
(iviii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less 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, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(viv) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(viivi) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company Seller with any other Person;
(viiivii) 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 Seller or limit the freedom of any Acquired Company or any Affiliate of an Acquired Company Seller to engage in any line of business or to compete with any Person;
(ixviii) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(xix) each power of attorney that is currently effective and outstanding;
(xix) 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 Seller to be responsible for consequential damages;
(xiixi) each Applicable Contract for capital expenditures in excess of $10,000;
(xiiixii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company Seller other than in the Ordinary Course of Business; and
(xivxiii) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(a2.16(a) of the Disclosure Letter Schedule sets forth reasonably complete details concerning such Contracts, including the title and parties to the such Applicable Contracts, the amount of the remaining commitment of the Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b2.16(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure LetterSchedule, each Applicable Contract identified or required to be identified in Part 3.17(a2.16(a) of the Disclosure Letter Schedule is in full force and effect and is valid and enforceable in accordance with its termsterms (except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally or by equitable principals).
(dc) Except as set forth in Part 3.17(d2.16(c) of the Disclosure LetterSchedule:
(i) each Acquired Company Seller is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Applicable Contract under which such Acquired Company Seller has or had any obligation or liability or by which such Acquired Company Seller or any of the assets owned or used by such Acquired Company Seller is or was bound, except where such is not material;
(ii) To the Knowledge of either Seller Stockholder, each other Person that has or had any obligation or liability under any Applicable Contract under which an Acquired Company Seller has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Applicable Contract, except where such is not material;
(iii) To the Knowledge of either Seller Stockholder, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract, except where such is not material; and
(iv) no Acquired Company None of Seller or either Seller Stockholder has given to to, or received from from, any other Person, at any time since December 31, 2005, Person any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Applicable Contract, except where such would be immaterial.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Applicable Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies Seller 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 RequirementRequirement in all material respects.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a2.14(a) of the Disclosure Letter contains a complete and accurate list, and the Sellers have delivered to Buyer Daily Journal true and complete copies, ofof each of the following that are currently in effect:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies Choice of an amount or value in excess of $25,00010,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies Choice of an amount or value in excess of $25,00010,000;
(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 by Choice in excess of $25,0005,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 1,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each employment agreement, collective bargaining agreement and other Applicable Contract to or with any employee, labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company Choice with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company Choice or any Affiliate of an Acquired Company Choice or limit the freedom of any Acquired Company Choice or any Affiliate of an Acquired Company Choice to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) 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 Choice to be responsible for consequential damages;
(xii) each Applicable Contract for capital expenditures in excess of $10,0005,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company Choice 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither No Seller (and no Related Person of either any Seller) has or may acquire any rights under, and neither no Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discoveryChoice.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Each Contract identified or required to be identified in Part 3.17(a2.14(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its termseffect.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company Choice is, and at all times since January 1, 2000, 1994 has been, in full compliance in all material respects with all applicable terms and requirements of each Contract under which such Acquired Company it has or had any obligation or liability or by which such Acquired Company it or any of the assets owned or used by such Acquired Company it is or was bound;
(ii) each . Each other Person that has or had any obligation or liability under any Contract under which an Acquired Company Choice has or had any rights is, and at all times since January 1, 2000 1994 has been, in full compliance in all material respects with all applicable terms and requirements of such Contract;
(iii) no . No event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a material violation of, or breach of, or give Choice or any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company . Choice has not given to or received from any other Person, at any time since December 31January 1, 20051994, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company Choice under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies Choice 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a3.20(a) of the Disclosure Letter contains a an accurate and complete and accurate list, and Sellers have Seller has delivered to Buyer true accurate and complete (as is in its possession) copies, of:
(i) each Applicable Seller Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies Seller of an amount or value in excess of $25,000250,000;
(ii) each Applicable 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 $25,000500,000;
(iii) each Applicable 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 $25,00050,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable 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 personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 50,000 and with terms a term of less than one year);
(v) each licensing agreement or other Applicable Seller Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 relating to wages, hours and other conditions of employment;
(vi) each Seller Contract with any independent third party relating to the delivery or administration of any employee benefits to Seller’s employees;
(vii) each joint ventureContract which is in respect of the employment, partnership, and other Applicable compensation or indemnification of a director or executive officer of Seller;
(viii) each Seller Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company Seller with any other Person;
(viiiix) each Applicable Seller Contract containing covenants that in any way purport to restrict the Seller’s 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 Seller to engage in any line of business or to compete with any Person;
(ixx) each Applicable Seller Contract providing for payments to or by any Person based on sales, purchases, purchases or profits, other than direct payments for goods;
(xxi) each power of attorney of Seller that is currently effective and outstanding;
(xixii) each Applicable Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired Company Seller to be responsible for consequential damages;
(xiixiii) each Applicable Seller Contract for capital expenditures in excess of $10,000100,000;
(xiiixiv) each Seller Contract not denominated in U.S. dollars in excess of $100,000;
(xv) each written warranty, guaranty, and or guaranty and/or other similar undertaking with respect to contractual performance extended by any Acquired Company Seller other than in the Ordinary Course of Business;
(xvi) each Contract that provides for the indemnification of any Person or the assumption of any Tax, environmental or other Liability of any Person;
(xvii) each Contract which involves, as parties thereto, Seller, on the one hand, and any of the directors, officers or other Affiliates of Seller or any Person that owns or controls more than ten percent of any class of capital stock or other equity interest of Seller and each such Person’s respective directors, officers or other Affiliates, on the other hand;
(xviii) each Contract which establishes or relates to a joint venture or partnership involving Seller;
(xix) each Contract which constitutes a mortgage, indenture, note, installment obligation or other instrument relating to the borrowing of money or under which it has imposed a security interest on any of the Purchased Assets;
(xx) each Contract which constitutes a guarantee of any obligation of another Person;
(xxi) each other Contract that is material to the Purchased Assets or the operation of the Business and not previously disclosed pursuant to this Section 3.20(a);
(xxii) each Real Property Lease (each of which are deemed to constitute a Seller Contract for the purposes of this Agreement); and
(xivxxiii) each material amendment, supplement, 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a3.20
(a) of the Disclosure Letter contains a an accurate and complete and accurate list, and Sellers have Seller has delivered to Buyer true accurate and complete copies, of:
(i) each Applicable Seller Contract that involves future performance of services or delivery of goods or materials by one or more Acquired Companies Seller of an amount or value in excess of $25,00010,000;
(ii) each Applicable Seller Contract that involves future performance of services or delivery of goods or materials to one or more Acquired Companies Seller of an amount or value in excess of $25,00010,000;
(iii) each Applicable Seller Contract that was not entered into in the Ordinary Course of Business and that involves future expenditures or receipts of one or more Acquired Companies Seller in excess of $25,00010,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable 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 personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms a term of less than one year);
(v) each licensing agreement or other Applicable Seller Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employeesemployees relating to wages, hours and other conditions of employment;
(viivi) each joint venture, partnership, and other Applicable Seller Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company Seller with any other Person;
(viiivii) each Applicable Seller Contract containing covenants that in any way purport to restrict the Seller's 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 Seller to engage in any line of business or to compete with any Person;
(ixviii) each Applicable Seller Contract providing for payments to or by any Person based on sales, purchases, purchases or profits, other than direct payments for goods;
(xix) each power of attorney of Seller that is currently effective and outstanding;
(xix) each Applicable Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired Company Seller to be responsible for consequential damages;
(xiixi) each Applicable Seller Contract for capital expenditures in excess of $10,00025,000;
(xiiixii) each written warranty, guaranty, and or guaranty and/or other similar undertaking with respect to contractual performance extended by any Acquired Company Seller other than in the Ordinary Course of Business; and
(xivxiii) each amendment, supplement, 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:3.20(b):
(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, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a3.20
(a) of the Disclosure Letter 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.;
(dii) each Contract identified or required to be identified in Part 3.20(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
(c) Except as set forth in Part 3.17(d) of the Disclosure Letter:3.20(c):
(i) each Acquired Company Seller is, and at all times since January 1, 2000its inception, has been, in full compliance with all applicable terms and requirements of each Seller Contract under which such Acquired Company has or had any obligation or liability or is being assumed by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was boundBuyer;
(ii) To Seller's knowledge, each other Person that has or had any obligation or liability under any Seller Contract under which an Acquired Company has or had any rights is being assigned to Buyer is, and at all times since January 1during the term of such Seller Contract, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, with or result in a violation or breach Breach of, or give any Acquired Company Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate, terminate or modify, any Applicable Contract; andSeller Contract that is being assigned to or assumed by Buyer;
(iv) no Acquired Company event has occurred or circumstance exists under or by virtue of any Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any of the Assets; and
(v) Seller has not given to or received from any other Person, at any time since December 31, 2005its inception, any 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 ContractContract which is being assigned to or assumed by Buyer.
(ed) There are no renegotiations of, attempts to renegotiate, renegotiate or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company Seller under current or completed Contracts with any Person and, having the contractual or statutory right to the Knowledge of Sellers demand or require such renegotiation and the Company, , no such Person has made written demand for such renegotiation.
(fe) The Contracts Each Contract relating to the sale, design, manufacture, manufacture or provision of products or services by the Acquired Companies have Seller has been entered into in the Ordinary Course of Business of Seller and have has been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter Schedule 5.15 contains a complete and accurate list, and the Sellers have delivered made available to Buyer the Purchaser true and complete copies, of:
(i) each written Applicable Contract that involves performance of services or delivery of goods by the Subject Company for a fixed price or materials by one or more Acquired Companies of an amount or value in excess of $25,000a fixed deliverable;
(ii) each written Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies of an amount or value the Subject Company for a fixed price in excess of $25,000;
(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 Subject Company, individually or, for a series of related Applicable Contracts, in the aggregate, in excess of $25,00010,000, or receipts of the Subject Company, individually or, for a series of related Applicable Contracts, in the aggregate, in excess of $20,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract of the Subject Company affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and or with terms of less than one year);
(v) each licensing agreement or other Applicable Contract of the Subject Company with respect to patents, trademarks, copyrights, copyrights or other intellectual property, including agreements with current or former employees, consultants, consultants or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract of the Subject Company to or with any labor union or other employee representative of a group of employeesemployees and each other written employment or consulting agreement with any employees or consultants;
(vii) each joint venture, partnership, partnership and other Applicable Contract of the Subject Company (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired the Subject Company with any other Person;
(viii) each Applicable Contract of the Subject Company containing covenants that in any way purport to restrict the business activity of any Acquired the Subject Company or any Affiliate of an Acquired the Subject Company or limit the freedom of any Acquired the Subject Company or any Affiliate of an Acquired the Subject Company to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract of the Subject Company providing for payments to or by any Person based on sales, purchases, purchases or profits, other than direct payments for goodsgoods and compensation arrangements with employees;
(x) 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 the Subject Company to be responsible for consequential damages;
(xii) each Applicable Contract of the Subject Company for capital expenditures in excess of $10,000;
(xiii) each Applicable Contract which, to the Knowledge of the Sellers, will result in a material loss to the Subject Company;
(xiv) each Applicable Contract between the Subject Company and its former or current stockholders, directors, officers and employees (other than standard employment agreements previously furnished to or approved by the Purchaser);
(xv) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired the Subject Company other than in the Ordinary Course of Business; and
(xivxvi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(a) of the Disclosure Letter Schedule 5.15 sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Companies Subject Company under the Contracts, and the Acquired Companies' office place where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights underSchedule 5.15, 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 Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] Sellers, no officer, director, agent, employee, consultant, consultant or contractor of any Acquired the Subject Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, consultant or contractor to (A) engage in or continue any conduct, activity, activity or practice relating to the business of any Acquired Company, the Subject Company or (B) assign to any Acquired the Subject Company or to any other Person any rights to any invention, improvement, improvement or discovery.
(c) Except as set forth in Part 3.17(c) Schedule 5.15, to the Knowledge of the Disclosure LetterSellers, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter Schedule 5.15 is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure LetterSchedule 5.15:
(i) each Acquired the Subject Company is, and at all times since January 1, 2000, has been, is in full compliance with all applicable material terms and requirements of each material Contract under which such Acquired the Subject Company has or had any obligation or liability Liability or by which such Acquired the Subject Company or any of the assets owned or used by such Acquired the Subject Company is or was bound;
(ii) to the Knowledge of the Sellers, each other Person that has or had any obligation or liability Liability under any material Contract under which an Acquired the Subject Company has or had any rights is, and at all times since January 1, 2000 has been, is in full compliance with all applicable material terms and requirements of such Contract;
(iii) to the Knowledge of the Sellers, no event has occurred or circumstance exists that (with or without notice or lapse of time) a reasonably prudent person would conclude may contravene, conflict with, or result in a violation or breach of, or give any Acquired the Subject Company or any other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, terminate or modify, any Applicable Contract; and
(iv) no Acquired the Subject Company has not given to or received from any other Person, at any time since December 31, 2005incorporation, any written or, to the Knowledge of the Sellers, other notice or other communication (whether oral or written) regarding any actual, alleged, possible, possible or potential material violation or material breach of, or material default under, any Applicable Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired the Subject Company under current or completed Applicable Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Applicable Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies Subject Company have been entered into in the Ordinary Course of Business and and, to the Knowledge of the Sellers, 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 (Corporate Staffing Resources Inc)
Contracts; No Defaults. (a) Part 3.17(aSchedule 2.1(e) of the Disclosure Letter contains a an accurate and complete and accurate list, and Sellers have Seller has delivered to Buyer true accurate and complete copies, of:
(i) each Applicable Seller Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies Seller of an amount or value in excess of $25,00010,000;
(ii) each Applicable 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 $25,00010,000;
(iii) each Applicable 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 $25,00010,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable 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 personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms a term of less than one year);
(v) each licensing agreement or other Applicable Seller Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employeesemployees relating to wages, hours and other conditions of employment;
(viivi) each joint venture, partnership, and other Applicable Seller Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company Seller with any other Person;
(viiivii) each Applicable Seller Contract containing covenants that in any way purport to restrict the Seller’s 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 Seller to engage in any line of business or to compete with any Person;
(ixviii) each Applicable Seller Contract providing for payments to or by any Person based on sales, purchases, purchases or profits, other than direct payments for goods;; Table of Contents
(xix) each power of attorney of Seller that is currently effective and outstanding;
(xix) each Applicable Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired Company Seller to be responsible for consequential damages;
(xiixi) each Applicable Seller Contract for capital expenditures in excess of $10,000;
(xii) 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 extended by any Acquired Company Seller other than in the Ordinary Course of Business; and
(xiv) each amendment, supplement, supplement and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(aSchedule 2.1(e) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Companies Seller under the Contracts, Contracts and the Acquired Companies' location of Seller’s office where details relating to the Contracts are located.
(b) Except as set forth in Part on Schedule 3.17(b) of the Disclosure Letter:):
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(aon Schedule 2.1(e) of the Disclosure Letter 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 on Schedule 2.1(e) 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 Knowledge of Seller, no Contract identified or required to be identified on Schedule 2.1(e) 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.
(dc) Except as set forth in Part 3.17(d) of the Disclosure Letter:on Schedule 3.17(c):
(i) each Acquired Company Seller is, and at all times since January 1, 20002008, has been, in full compliance with all applicable terms and requirements of each Seller Contract under which such Acquired Company has or had any obligation or liability or is being assumed by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was boundBuyer;
(ii) each other Person that has or had any obligation or liability under any Seller Contract under which an Acquired Company has or had any rights is being assigned to Buyer is, and at all times since January 1, 2000 2008, Table of Contents has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, with or result in a violation or breach Breach of, or give any Acquired Company Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate, terminate or modify, any Applicable Contract; andSeller Contract that is being assigned to or assumed by Buyer;
(iv) no Acquired Company event has occurred or circumstance exists under or by virtue of any Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any of the Assets; and
(v) Seller has not given to or received from any other Person, at any time since December 31January 1, 20052008, any 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 ContractContract which is being assigned to or assumed by Buyer.
(ed) There are no renegotiations of, attempts to renegotiate, renegotiate or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company Seller under current or completed Contracts with any Person and, having the contractual or statutory right to the Knowledge of Sellers demand or require such renegotiation and the Company, , no such Person has made written demand for such renegotiation.
(fe) The Contracts Each Contract relating to the sale, design, manufacture, manufacture or provision of products or services by the Acquired Companies have Seller has been entered into in the Ordinary Course of Business of Seller and have has been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a3.14(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, ofidentifies:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,00050,000 other than sales orders for the sale by an Acquired Company of goods or services in the Ordinary Course of Business;
(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 $25,00050,000 other than purchase orders for the purchase by an Acquired Company of goods or services in the Ordinary Course of Business;
(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 $25,000;
(iv) each Contract for borrowed money;
(v) each lease, rental or occupancy agreement, license, installment and conditional sale sales agreement, and other Applicable Contract Contracts affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property to which an Acquired Company is a party (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and 25,000 or with terms of less than one year);
(vvi) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, trademarks or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assetscopyrights to which an Acquired Company is a party;
(vivii) each collective bargaining agreement and other Applicable Contract to which an Acquired Company is a party to or with any labor union or other employee representative of a group of employees;
(viiviii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person;
(viiiix) each Applicable Contract to which an Acquired Company is a party 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;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goodsCompany;
(x) 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 to which an express undertaking by any Acquired Company to be responsible for consequential damages;
(xii) each Applicable Contract is a party for capital expenditures in excess of $10,00050,000;
(xiiixi) to the extent not listed elsewhere in Part 3.14(a) of the Disclosure Letter, each Contract providing for payments by or to any Person based on sales, purchases or profits, other than direct payment for goods;
(xii) each written warranty, guaranty, and guaranty or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of Business; and
(xivxiii) each written amendment, supplement, 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b3.14(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any Inquiry Knowledge of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a3.14(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(dc) Except as set forth in Part 3.17(d3.14(c) of the Disclosure Letter, to the Inquiry Knowledge of the Company:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, is in full substantial compliance with all applicable terms and requirements of each Contract listed in Part 3.14(a) of the Disclosure Letter under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract listed in Part 3.14(a) of the Disclosure Letter under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, is in full substantial compliance with all applicable terms and requirements of such Contract;; and
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Sources: Merger Agreement (Depuy Inc)
Contracts; No Defaults. (a) Part 3.17(a3.20(a) of the Disclosure Letter contains a an accurate and complete and accurate list, and Sellers have Seller has delivered to Buyer true (or attached to the Disclosure Schedule as required herein) accurate and complete copies, of:
(i) backlog lists of Seller and Unique Fabrications, listing all Seller Contracts that are orders from Business customers on backlog (by customer name, order number, order date, model, selling price, cost, and gross profit) as of the date hereof, updated as of the Closing Date ("Backlog List(s)"), which has been separately attached to the Disclosure Schedule;
(ii) to the extent not listed on Part 3.20
(a) from Section 3.20(a)(i) above, each Applicable Seller Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies to Seller of an amount or value in excess of twenty-five thousand ($25,000;
(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 $25,000dollars;
(iii) each Applicable Seller Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one Seller or more Acquired Companies Unique Fabrications in excess of ten ($25,00010,000) dollars;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable 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 personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than twenty-five thousand ($10,000 25,000) dollars and with terms a term of less than one year);
(v) each licensing agreement or other Applicable Seller Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employeesemployees relating to wages, hours and other conditions of employment;
(viivi) each joint venture, partnership, and other Applicable Seller Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company Seller with any other Person;
(viiivii) each Applicable Seller Contract containing covenants that in any way purport to restrict the business Business activity of any Acquired Company or any Affiliate of an Acquired Company or limit the freedom of any Acquired Company Seller or any Affiliate of an Acquired Company Unique Fabrications to engage in any line of business or to compete with any Person;
(ixviii) each Applicable Seller Contract providing for payments to or by any Person based on sales, purchases, purchases or profits, other than direct payments for goods;
(xix) each power of attorney of Seller or Unique Fabrications that is currently effective and outstanding;
(xix) each Applicable Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired Company Seller or Unique Fabrications to be responsible for consequential damages;
(xiixi) each Applicable Seller Contract for capital expenditures in excess of twenty thousand ($10,00020,000) dollars;
(xii) 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 extended by any Acquired Company Seller other than in the Ordinary Course of Business; and
(xiv) each amendment, supplement, 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) 3.20(b), no shareholder of the Disclosure Letter:
(i) neither Seller (and no Related Person or member of either Seller) Unique Fabrications has or may acquire any rights under, and neither no shareholder of Seller or member of Unique Fabrications has or may become subject to any obligation or liability under, any Contract that relates to the business of, Business or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discoveryAssets.
(c) Except as set forth in Part 3.17(c3.20(c):
(i) of the Disclosure Letter, each Seller Contract identified or required to be identified in Part 3.17(a3.20
(a) of the Disclosure Letter 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 termsterms and the Backlog List is a complete and correct list of all Business customer orders on backlog as of the Closing Date and such list represents actual, bona fide, outstanding orders of the Business that have not been cancelled on or prior to the Closing Date;
(ii) each Seller Contract identified or required to be identified in Part 3.20(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 Knowledge of Seller, no Seller Contract identified or required to be identified in Part 3.20(a) and which is to be assigned to or assumed by Buyer under this Agreement will upon completion or performance thereof have a Material Adverse Effect on the Business, assets or condition of Seller or the Business to be conducted by Buyer with the Assets.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:3.20(d):
(i) each Acquired Company Seller is, and at all times since January 1December 31, 20001999, has been, in full compliance with all applicable terms and requirements of each Seller Contract under which such Acquired Company has or had is being assumed by Buyer except where any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was boundnoncompliance would not have a Material Adverse Effect;
(ii) to the Knowledge of Seller, each other Person that has or had any obligation or liability under any Seller Contract under which an Acquired Company has or had any rights is being assigned to Buyer is, and at all times since January 1December 31, 2000 1999, has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of Seller, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in constitutes a violation or breach Breach of, or give any Acquired Company Seller, Unique Fabrications, or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate, terminate or modify, any Applicable Contract; andSeller Contract that is being assigned to or assumed by Buyer;
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, Seller, no such Person event has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, occurred or provision of products circumstance exists under or services by the Acquired Companies have been entered into in the Ordinary Course of Business and have been entered into without the commission virtue of any act alone Seller Contract that (with or in concert with any other Person, without notice or any consideration having been paid or promised, that is or lapse of time) would be in violation cause the creation of any Legal Requirement.Encumbrance affecting any of the Assets; and
Appears in 1 contract
Sources: Asset Purchase Agreement (Champion Enterprises Inc)
Contracts; No Defaults. (a) Part 3.17(a3.20(a) of the Disclosure Letter contains a an accurate and complete and accurate list, and Sellers have Seller has delivered to Buyer true accurate and complete copies, of:
(i) each Applicable Seller Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies Seller of an amount or value in excess of twenty five thousand dollars ($25,000);
(ii) each Applicable 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 twenty five thousand dollars ($25,000);
(iii) each Applicable 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 ten thousand dollars ($25,00010,000);
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable 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 personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than ten thousand dollars ($10,000 10,000) and with terms a term of less than one year);
(v) each licensing agreement or other Applicable Seller Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employeesemployees relating to wages, hours and other conditions of employment;
(viivi) each joint venture, partnership, and other Applicable Seller Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company Seller with any other Person;
(viiivii) each Applicable Seller Contract containing covenants that in any way purport to restrict the Seller’s 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 Seller to engage in any line of business or to compete with any Person;
(ixviii) each Applicable Seller Contract providing for payments to or by any Person based on sales, purchases, purchases or profits, other than direct payments for goods;
(xix) each power of attorney of Seller that is currently effective and outstanding;
(xix) each Applicable Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired Company Seller to be responsible for consequential damages;
(xiixi) each Applicable Seller Contract for capital expenditures in excess of ten thousand dollars ($10,000);
(xii) 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 extended by any Acquired Company Seller other than in the Ordinary Course of Business; and,
(xiv) each amendment, supplement, 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or 3.20(b), Shareholder may not acquire any rights under, and neither Seller no Shareholder has or may become subject to any obligation or liability under, any Contract that relates to the business of, of Seller or any of the assets owned or used by, any Acquired Company; and
(ii) [Assets except for its obligations pursuant to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discoveryTransition Services Agreement.
(c) Except as set Set forth in Part 3.17(c3.20(c) of is the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of repayment schedule for the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its termsAmecon Debt (“Amecon Repayment Schedule”).
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:3.20(d):
(i) each Acquired Company isTo the Knowledge of Seller, and at Seller is in compliance in all times since January 1, 2000, has been, in full compliance material respects with all applicable terms and requirements of each Seller Contract under in excess of $10,000 value per annum which is being assumed by Buyer and each such Acquired Company has or had material Seller Contract is in full force and effect and can be assigned without the consent of any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was boundthird party, except those listed in Part 2.10;
(ii) To the Knowledge of Seller, Seller and each other Person that has or had any obligation or liability under any Seller Contract under which an Acquired Company has or had any rights is, and at is being assigned to Buyer is in compliance in all times since January 1, 2000 has been, in full compliance material respects with all applicable terms and requirements of such Contract;; and
(iii) The Seller has no event has occurred or circumstance exists that (with or without notice or lapse Knowledge of time) may contravene, conflict with, or result in any party to a violation or breach of, or give any Acquired Company or other Person the right Seller Contract who intends to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any terminate such Seller Contract.
(e) There To the Knowledge of Seller, there are no renegotiations of, attempts to renegotiate, renegotiate or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company Seller under current or completed Contracts with any Person and, having the contractual or statutory right to the Knowledge of Sellers demand or require such renegotiation and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a4.17(a) of the Primal Disclosure Letter contains a complete and accurate list, and Sellers have Primal has delivered to Buyer ▇▇▇▇▇ true and complete copies, of:
(i) each licensing agreement or other Applicable Contract with respect to the Software (collectively, the “Software Licenses”);
(ii) each Applicable Contract with respect to the providing of consulting services by one or more of the Acquired Companies or any of their employees or agents (collectively, the “Consulting Contracts”);
(iii) each Applicable Contract (other than the Software Licenses and the Consulting Contracts) that involves performance of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,000$ 10,000;
(iiiv) 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 $25,00010,000;
(iiiv) 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 $25,00010,000;
(ivvi) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(vvii) each licensing agreement or other Applicable Contract (other than the Software Licenses) with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(viviii) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(viiix) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person;
(viiix) 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;
(ixxi) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(xxii) each power of attorney that is currently effective and outstanding;
(xixiii) 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;
(xiixiv) each Applicable Contract for capital expenditures in excess of $$ 10,000;
(xiiixv) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of Business; and
(xivxvi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(a4.17(a) of the Primal Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Companies under the Contracts, and the Acquired Companies' ’ office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b4.17(b) of the Primal Disclosure Letter:
(i) neither Seller no stockholder of Primal (and no Related Person of either Sellerany stockholder of Primal) has or may acquire any rights under, and neither Seller no stockholder of Primal has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] , no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c4.17(c) of the Primal Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a4.17(a) of the Primal Disclosure Letter is in full force and effect and and, to the Knowledge of Primal, is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d4.17(d) of the Primal Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1June 17, 20001996, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) to the Knowledge of Primal, each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1June 17, 2000 1996, has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of Primal, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31June 17, 20051996, any written notice or other written communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, Acquired Companies, no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies have been entered into in the Ordinary Course of Business and and, to the Knowledge of Primal, 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 3.17(a) To the best of the Disclosure Letter contains a complete Company’s and accurate listthe Company’s Knowledge, and Sellers have delivered the Company or the Company Shareholder has made available to Buyer A▇▇▇▇▇▇▇ true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies the Company of an amount or value in excess of $25,0005,000;
(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 $25,0005,000;
(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 $25,0005,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 5,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired the Company with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any Affiliate of an Acquired the Company or limit the freedom of any Acquired the Company or any Affiliate of an Acquired the Company to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) 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 the Company to be responsible for consequential damages;
(xii) each Applicable Contract for capital expenditures in excess of $10,0005,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) To the best of the Disclosure LetterCompany’s or the Company Shareholder’s Knowledge:
(i) neither Seller (and no the Company, the Company Shareholder nor any Related Person of either Seller) has or may acquire any rights under, and neither Seller the Company nor the Company Shareholder has or may 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
(ii) [to To the Knowledge best of Sellers and the Acquired Companies,] Company’s or the Company Shareholder’s Knowledge, no officer, director, agent, employee, consultant, or contractor of any Acquired 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 any Acquired the Company, or (B) assign to any Acquired 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) To the best of the Disclosure LetterCompany’s or the Company Shareholder’s Knowledge, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter Company is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) To the best of the Disclosure LetterCompany’s or the Company Shareholder’s Knowledge:
(i) each Acquired the Company is, and at all times since January 1, 2000, has been, is in full compliance with all applicable terms and requirements of each Contract under which such Acquired the Company has or had any obligation or liability or by which such Acquired the Company or any of the assets owned or used by such Acquired the Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired the Company has or had any rights is, and at all times since January 1, 2000 has been, is in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired the Company has not given to or received from any other Person, at any time since December 31, 2005, Person any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There To the best of the Company Shareholder’s Knowledge, there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired the Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The To the best of the Company Shareholder’s Knowledge, the Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a3.16(a) of the Disclosure Letter contains a complete and accurate list, and Sellers Stockholders have delivered made available to Buyer true and complete copiescopies (or written summaries in the case of oral arrangements), of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies of the Company for an amount or having a value in excess of $25,00020,000;
(ii) each Applicable Contract that involves performance of services for, or delivery of goods or materials to one or more Acquired Companies of the Company for an amount or having a value in excess of $25,00020,000;
(iii) each Applicable Contract that was not entered into in the Company's Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies the Company in excess of $25,0005,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract agreement affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 5,000 and with terms of less than one year);
(v) each licensing agreement, sales agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including property (other than licensing agreements normally accompanying non-material software programs such as WordPerfect(TM) and Quicken(TM));
(vi) each currently effective Applicable Contract with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;; COURIER/BOOK-MART PRESS, INC. STOCK PURCHASE AGREEMENT
(vivii) each collective bargaining agreement Applicable Contract and each other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(viiviii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired the Company with any other Person;
(viiiix) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or or, to the Actual Knowledge of Stockholders, any Affiliate of an Acquired the Company or limit the freedom of any Acquired the Company or any Affiliate of an Acquired the Company to engage in any line of business or to compete with any Person;
(ixx) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(xxi) each power of attorney that is currently effective and outstanding;
(xixii) each Applicable Contract entered into other than in the Company's Ordinary Course of Business that contains or provides for an express undertaking by any Acquired the Company to be responsible for special, consequential damagesor indirect damages which may exceed $5,000;
(xiixiii) each Applicable Contract for capital expenditures in excess of $10,00020,000;
(xiiixiv) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired the Company other than in the Company's Ordinary Course of Business; and
(xivxv) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(a.
(a) of the Disclosure Letter sets forth reasonably complete details concerning the subject matter of such Contracts, including the parties to the such Contracts, and (if ascertainable) the amount of the remaining commitment of the Acquired Companies Company under the such Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b3.16(b) of the Disclosure Letter:: COURIER/BOOK-MART PRESS, INC. STOCK PURCHASE AGREEMENT
(i) neither Seller no Stockholder (and no Related Person of either Sellerany Stockholder) has or may acquire any rights under, and neither Seller no Stockholder 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 CompanyApplicable Contract; and
(ii) [to the Actual Knowledge of Sellers and the Acquired Companies,] Stockholders, no officer, director, agent, employee, consultant, or contractor of any Acquired the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) compete with the Company or otherwise engage in or continue any conduct, activity, or practice directly relating to such Person's involvement with the business of any Acquired the Company, or (B) assign to any Acquired the Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c3.16(c) of the Disclosure Letter, each Contract identified or or, to the Actual Knowledge of Stockholders, required to be identified in Part 3.17(a3.16(a) or 3.16(b) of the Disclosure Letter is in full force and effect and and, to the Actual Knowledge of Stockholders, there is no basis for believing that each such Contract is not valid and enforceable in all material respects in accordance with its termsterms (it being acknowledged by Buyer that any relief seeking specific performance or other equitable remedy may be within the discretion of a court having jurisdiction with respect thereto).
(d) Except as set forth in Part 3.17(d3.16(d) of the Disclosure Letter:
(i) each Acquired the Company is, and at all times since January October 1, 20001995, has been, in full compliance in all material respects with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person andidentified or, to the Actual Knowledge of Sellers and the CompanyStockholders, , no such Person has made written demand for such renegotiation.
(frequired to be identified in Part 3.16(a) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.3.16
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(aSchedule 5.12(a) of the Disclosure Letter CorpAcq Schedules contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copieslisting of all Contracts (other than purchase orders providing for consideration of less than £500,000) described in clauses (i) through (xvi) of this Section 5.12(a) to which, of:as of the date hereof, CorpAcq Holdco or any of its Significant Subsidiaries (or, with respect to Section 5.12(a)(ii), any of its Subsidiaries) is a party (together with all material amendments, waivers or other changes thereto) other than CorpAcq Benefit Plans (collectively, the “Material Contracts”). True, correct and complete copies of the Material Contracts have been made available to CCVII.
(i) each Applicable Each Contract that involves performance relates to (x) a Material Customer of services a Significant Subsidiary or delivery (y) a Material Supplier of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,000a Significant Subsidiary;
(ii) each Applicable Each Contract that involves performance to the knowledge of services the CorpAcq Parties involved aggregate payments or delivery consideration furnished by or to CorpAcq Holdco or by or to any of goods or materials to one or its Subsidiaries of more Acquired Companies of an amount or value than £2,000,000 in excess of $25,000the calendar year ended December 31, 2022;
(iii) each Applicable Each Contract that was is a definitive purchase and sale or similar agreement for the acquisition of any Subsidiary or the disposition of any Person that, if not entered into for such disposition, would reasonably likely be a Subsidiary of CorpAcq Holdco or any of its Subsidiaries, in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies in excess of $25,000each case, consummated since January 1, 2022;
(iv) each Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, agreement and each other Applicable Contract affecting with outstanding obligations that (x) provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in, in any real or personal property and (except personal property leases and installment and conditional sales agreements having a value per item or y) involves aggregate payments in excess of less £1,000,000 in any calendar year, other than $10,000 sales or purchase agreements in the ordinary course of business and with terms sales of less than one year)obsolete equipment;
(v) each licensing agreement Each Contract requiring CorpAcq Holdco or other Applicable Contract with respect its Subsidiaries to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding guarantee the appropriation or the non-disclosure Liabilities of any Person (other than an entity within the CorpAcq Group) or pursuant to which any Person (other than an entity within the CorpAcq Group) has guaranteed the Liabilities of any entity within the Intellectual Property AssetsCorpAcq Group, in each case in excess of £1,000,000;
(vi) each collective bargaining Each joint venture Contract, partnership agreement, limited liability company agreement or similar Contract (other than Contracts between Subsidiaries of CorpAcq Holdco) that is material to the business of CorpAcq Holdco and other Applicable Contract to or with any labor union or other employee representative of its Significant Subsidiaries, taken as a group of employeeswhole;
(vii) each Each material advertising, agency, original equipment manufacturer, dealer, distributors, joint venturemarketing, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other PersonContract the performance of which requires either (A) annual payments to or from CorpAcq Holdco or any of its Significant Subsidiaries in excess of £1,000,000 or (B) aggregate payments to or from CorpAcq Holdco or any of its Significant Subsidiaries in excess of £1,000,000 over the term of the agreement and, in each case, that is not terminable by the CorpAcq Holdco or any of its Significant Subsidiaries without penalty upon less than 60 days’ prior written notice;
(viii) each Applicable Each Contract containing covenants that requiring capital expenditures after the date of this Agreement in an amount in excess of £1,000,000 in the aggregate;
(ix) Each Contract expressly prohibiting or restricting in any way purport to restrict material respect the business activity ability of any Acquired Company CorpAcq Holdco or any Affiliate of an Acquired Company or limit the freedom of any Acquired Company or any Affiliate of an Acquired Company its Subsidiaries to engage in any line of business business, to sell or distribute any products, to operate in any geographical area or to compete with any Person;
(ix) each Applicable Contract providing ; provided that non-solicitation obligations with respect to employees, consultants or service providers of a third party shall not be deemed to prohibit or restrict competition for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goodspurposes of this Section;
(x) each power Each license or other agreement with respect to any item of attorney Intellectual Property that is currently effective and outstandingmaterial to CorpAcq Group (excluding licenses granted to CorpAcq Holdco or its Subsidiaries for commercially available “off-the-shelf” software, or non-exclusive licenses granted in the ordinary course of business);
(xi) each Applicable Each Contract entered into other than with a Governmental Authority involving annual payments in the Ordinary Course excess of Business that contains or provides for an express undertaking by any Acquired Company to be responsible for consequential damages£1,000,000;
(xii) each Applicable Each Contract for capital expenditures which may be terminated by the relevant counterparty as a result of one or more of the Transactions, which if so terminated, would reasonably be expected to have, individually or in excess of $10,000the aggregate, a Material Adverse Effect;
(xiii) each written warrantyEach settlement, guarantyconciliation or similar Contract (A) the performance of which would be reasonably expected to involve any payments in excess of £1,000,000 after the date of this Agreement, and (B) with a Governmental Authority or (C) that imposes or is reasonably expected to impose, at any time in the future, any material non-monetary obligations on CorpAcq Holdco or any of its Subsidiaries (or any CorpAcq Party or any of its Affiliates after the Closing);
(xiv) Each employee collective bargaining Contract or other similar undertaking Contract with respect any labor union, works council, or labor organization or association;
(xv) Each sales commission or brokerage Contract that involves annual payments in excess of £250,000 or is not cancellable on thirty (30) calendar days’ notice or less without payment or penalty;
(xvi) Each mortgage, indenture, note, installment obligation or other instrument, agreement or arrangement or Contract for or relating (1) to contractual performance extended by Indebtedness for borrowed money of CorpAcq Holdco or any Acquired Company of its Subsidiaries, in each case in excess of £1,000,000 or (2) to the placing of a Lien (other than a Permitted Lien) on any material assets or properties valued in excess of £1,000,000 of CorpAcq Holdco or any of its Subsidiaries;
(xvii) Any Contract that is a currency or interest hedging arrangement;
(xviii) Any Contract under which CorpAcq Holdco or any of its Subsidiaries has agreed to purchase or sell goods or services from a vendor, supplier or other person on a preferred supplier or “most favored supplier” basis and the Ordinary Course payments to or by CorpAcq Holdco or any such Subsidiary thereunder exceeded £1,000,000 during the year ended December 31, 2022;
(xix) Any Contract involving any Subsidiary, which has either been terminated or discharged by frustration, nor has the performance of Businessany obligation thereunder been suspended or otherwise materially varied, in each case for a reason associated with COVID-19;
(xx) Any Contract relating to any pending acquisition or disposition of any Real Property; and
(xivxxi) each amendment, supplement, and modification (whether oral or written) in respect of any Any Contract relating to a commitment to enter into agreement of the foregoing. Part 3.17(atype described in clauses (i) through (xxii) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are locatedthis Section 5.13(a).
(b) Except for any Contract that has expired or will expire pursuant to its terms prior to the Closing Date and except as set forth would not, individually or in Part 3.17(b) of the Disclosure Letter:
aggregate, reasonably be expected to have a Material Adverse Effect, each Material Contract is (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, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) represents the legal, valid and binding obligations of CorpAcq Holdco or one of its Subsidiaries party thereto and, to the knowledge of the CorpAcq Parties, represent the legal, valid and binding obligations of the other parties thereto, in each case, subject to the Enforceability Exceptions. Except as would not reasonably be expected to be, individually or in the aggregate a Material Adverse Effect, (w) none of CorpAcq Holdco, any of its Subsidiaries or, to the knowledge of the CorpAcq Parties, any other Person that has party thereto is or had any obligation is alleged to be in material breach of or liability material default under any Contract Material Contract, (x) neither CorpAcq Holdco nor any of its Subsidiaries has received any written claim or notice of material breach of or material default under which an Acquired Company has or had any rights isMaterial Contract, and at all times since January 1(y) to the knowledge of the CorpAcq Parties, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred which individually or circumstance exists that together with other events, would reasonably be expected to result in a material breach of or a material default under any Material Contract (in each case, with or without notice or lapse of timetime or both) may contraveneand (z) no party to any Material Contract that is currently a Material Customer or Material Supplier to CorpAcq Holdco or any of its Subsidiaries has to the knowledge of the CorpAcq Parties, conflict threatened in writing to cancel or terminate its business with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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, CorpAcq Holdco or any consideration having been paid or promised, that is or would be in violation of any Legal Requirementits Subsidiaries.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(aExcept for the Leases and Company Benefit Plans set forth on Section 5.13(a) of the Company Disclosure Letter, Section 5.12(a) of the Company Disclosure Letter contains sets forth a true, complete and accurate listlist of all of the following Contracts to which as of the date of this Agreement, and Sellers have delivered to Buyer true and complete copies, ofthe Company and/or any of its Subsidiaries or any Group Company is a party or is otherwise bound:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,000Contracts with any Material Supplier;
(ii) each Applicable Contract that involves performance of services requires aggregate future payments to the Company, its Subsidiaries or delivery of goods or materials to one or more Acquired Companies of an amount or value any Group Company in excess of $25,0001,500,000 in any calendar year, including the Group Companies’ 10 largest Payors in the aggregate (in terms of the Group Companies’ gross collections during the fiscal year ended December 31, 2020) (collectively, “Material Payors”);
(iii) each Applicable Contract that was not entered into grants to any Person (other than the Company, its Subsidiaries or the Group Companies) (A) any “most favored nation” provisions or other price guarantees for a period greater than one year with respect to such payments described in clause (A), or (B) material non-competition, non-solicitation or no-hire provisions imposed on the Ordinary Course of Business and that involves expenditures Company, its Subsidiaries or receipts of one or more Acquired Companies in excess of $25,000any Group Company;
(iv) (x) Contracts (including letters of intent) entered into since December 31, 2017 with respect to mergers, acquisitions or sales of any Person or other material business unit or division thereof by the Company, any of its Subsidiaries or any Group Company (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 ofan “M&A Contract”), or any leasehold or other interest in(y) M&A Contracts in which the Company, any real of its Subsidiaries or personal property (except personal property leases and installment and conditional sales agreements having a value per item any Group Company have any material ongoing obligations or aggregate liabilities, including deferred purchase price payments, earn-out payments of less than $10,000 and with terms of less than one year)or indemnification obligations;
(v) each licensing agreement Contracts establishing partnerships, joint ventures, strategic alliances or other Applicable Contract with respect collaborations, in each case, that are material to patentsthe Company, trademarksits Subsidiaries or for any Group Company, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assetstaken as a whole;
(vi) each collective bargaining agreement and other Applicable Contract with Governmental Authorities in each case, that is material to the Company, its Subsidiaries or with for any labor union or other employee representative of Group Company, taken as a group of employeeswhole;
(vii) each joint ventureContract under which the Company, partnershipits Subsidiaries or any Group Company has (A) created, and other Applicable Contract incurred, assumed or guaranteed (however namedor may create, incur, assume or guarantee) involving Indebtedness, (B) granted a sharing of profitsLien on its assets, losseswhether tangible or intangible, coststo secure any Indebtedness, or liabilities by (C) extended credit to any Acquired Company with any Person (other Personthan (1) intercompany loans and advances and (2) customer payment terms in the ordinary course of business);
(viii) each Applicable Contract containing covenants Contracts that in any way purport relate to restrict the business activity settlement or final disposition of any Acquired material Action within the last three years pursuant to which the Company or any Affiliate of an Acquired Company its Subsidiaries has ongoing obligations or limit the freedom liabilities, in each case, in excess of any Acquired Company or any Affiliate of an Acquired Company to engage in any line of business or to compete with any Person$1,500,000;
(ix) each Applicable Contract providing for payments to which the Company, any of its Subsidiaries or by any Group Company is a party whereby the Company or any of its Subsidiaries (A) has granted any Person based on salesany license, purchases, immunity or profits, other rights to a third party in or to any Owned Intellectual Property (other than direct payments for goodsnon-exclusive licenses granted by or to customers in the ordinary course of business) or (B) is granted a license, immunity or other rights from a third party in or to any Intellectual Property (other than (x) licenses to open source software, and non-exclusive licenses in respect of commercially available off-the-shelf software on standard terms), (y) invention assignment agreements with current and former employees, consultants, and independent contractors of the Company and its Subsidiaries and (z) employment agreements with any current or former employee;
(x) each power Contracts with any Group Company, or with any officer, director, manager, stockholder, member of attorney that is currently effective an Affiliate of the Company, any of its Subsidiaries, any Group Company or any of their respective relatives or Affiliates (“Affiliate Agreements”) (other than the Company, any of the Company’s Subsidiaries or any Group Company) (excluding employee confidentiality and outstandinginvention assignment agreements, equity or incentive equity documents, Governing Documents, employment agreements, Contracts set forth under Section 5.12(a)(ix) or Section 5.13(a) of the Company Disclosure Letter and offer letters for at-will employment set forth on Section 5.13(a) of the Company Disclosure Letter);
(xi) employment, severance, consulting, and similar Contracts with each Applicable Contract entered into other than in current executive, officer, director, employee or independent contractor of the Ordinary Course of Business that contains Company, its Subsidiaries or provides any Group Company providing for an express undertaking by annual base salary in excess of $200,000 which is not terminable at-will without any Acquired Company further liability to be responsible for consequential damagesthe Company, its Subsidiaries or any Group Company;
(xii) each Applicable Contract for capital expenditures in excess of $10,000any corporate integrity agreements, settlement and other similar agreements with Governmental Authorities;
(xiii) each written warrantyemployee collective bargaining agreement or similar Contract between the Company, guarantyany of the Company’s Subsidiaries or any Group Company, on the one hand, and any labor union or other similar undertaking with respect to contractual performance extended by body representing employees of the Company, any Acquired Company of the Company’s Subsidiaries or any Group Company, on the other than in the Ordinary Course of Businesshand; and
(xiv) each amendment, supplement, and modification (whether oral any Contract pursuant to which any Person provides management services to any Group Company or written) in respect of pursuant to which any of the foregoing. Part 3.17(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties Group Company provides management services to the Contracts, the amount of the remaining commitment of the Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are locatedany other Person.
(b) Except as All of the foregoing set forth in Part 3.17(bon Section 5.12(a) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each including all amendments and modifications thereto, are sometimes collectively referred to as “Material Contracts.” The Company has furnished or otherwise made available to Acquiror true, complete and correct copies of all Material Contracts. Each Material Contract identified or required to be identified in Part 3.17(a) of sets forth the Disclosure Letter entire agreement and understanding between the Company and/or its Subsidiaries and the other parties thereto, including a Group Company. Each Material Contract is valid, binding and in full force and effect (subject to the Enforceability Exceptions and assuming such Material Contract is a valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) legally binding obligation of the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any counterparty thereto). None of the assets owned Company, its Subsidiaries nor, to the knowledge of the Company, any other party thereto, including a Group Company, is in default or used by such Acquired Company violation of any Material Contract in any material respect. There is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance condition that exists that (constitutes or, with or without notice or lapse the passage of time) may contravenetime or both, conflict withwould constitute any such default or violation by the Company, or result in its Subsidiaries or, to the knowledge of the Company, any other party thereto, including a violation or breach ofGroup Company, or give rise to any Acquired Company acceleration of any obligation or other Person the loss of rights or any right to declare of termination of a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Material Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since . Since December 31, 20052017, neither the Company nor any of its Subsidiaries or the Group Companies has received any notice or request, in each case, in writing, on behalf of any other communication (whether oral party to a Material Contract to terminate, cancel or written) regarding any actual, alleged, possiblenot renew such Material Contract, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid term thereof that would reasonably be expected to have, individually or payable to any Acquired Company under current or completed Contracts with any Person andin the aggregate, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacturea Material Adverse Effect, or provision of products alleging or services by the Acquired Companies have been entered into in the Ordinary Course of Business and have been entered into without the commission of disputing any act alone breach 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 Requirementdefault under such Material Contract.
Appears in 1 contract
Sources: Merger Agreement (DFP Healthcare Acquisitions Corp.)
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter Exhibit 3.17 contains a complete and accurate list, and Sellers have Seller has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies the Company of an amount or value in excess of $25,0005,000;
(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 $25,0005,000;
(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 $25,0005,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 5,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired the Company with any other Person;
(viii) 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 the Company or limit the freedom of any Acquired Company or any Affiliate of an Acquired the Company to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) 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 the Company to be responsible for consequential damages;
(xii) each Applicable Contract for capital expenditures in excess of $10,00010,000.00;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, ofNo Biomune Affiliated Company has any Applicable Contract:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Biomune Affiliated Companies of an amount or value in excess of $25,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Biomune Affiliated Companies of an amount or value in excess of $25,000;
(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 Biomune Affiliated Companies in excess of $25,00010,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting that affects the Biomune Affiliated Company's ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 25,000 and with terms of less than one year);
(v) each that evidences a licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property AssetsRights;
(vi) each that evidences a collective bargaining agreement and or other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each that evidences a joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Biomune Affiliated Company with any other Person;
(viii) each Applicable Contract containing that contains covenants that in any way purport to restrict the business activity of any Acquired Biomune Affiliated Company or any Affiliate affiliate of an Acquired Biomune Affiliated Company or limit the freedom of any Acquired Biomune Affiliated Company or any Affiliate affiliate of an Acquired Biomune Affiliated Company to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing that provides for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) each that evidences a power of attorney that is currently effective and outstanding;
(xi) each Applicable Contract that was entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired Biomune Affiliated Company to be responsible for consequential damages;
(xii) each Applicable Contract for that requires capital expenditures in excess of $10,000;
(xiii) each that evidences a written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Biomune Affiliated Company other than in the Ordinary Course of Business; and
(xiv) each that evidences an amendment, supplement, and supplement or 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to To the Knowledge of Sellers and the Acquired Biomune Affiliated Companies,] , no officer, director, agent, employee, consultant, or contractor of any Acquired Biomune Affiliated Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Biomune Affiliated 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 Each Contract identified or required to be identified in Part 3.17(a2.35(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure LetterSchedules to this Agreement:
(i) each Acquired Biomune Affiliated Company is, and at all times time since January 1, 2000, 1997 has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Biomune Affiliated Company has or had any obligation or liability Liability or by which such Acquired Biomune Affiliated Company or any of the assets owned or used by such Acquired Biomune Affiliated Company is or was bound;
(ii) each other Person that has or had any obligation or liability Liability under any Contract under which an Acquired Biomune Affiliated Company has or had any rights is, and at all times since January 1, 2000 1997 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of the Biomune Affiliated Companies, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Biomune Affiliated Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Biomune Affiliated Company has given to or received from any other Person, at any time since December 31January 1, 20051997, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Biomune Affiliated Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products the Biomune Products or services by the Acquired Biomune Affiliated Companies 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 RequirementLaw.
Appears in 1 contract
Contracts; No Defaults. 37 39 (a) Part 3.17(a) of the Disclosure Letter Schedule 5.16 contains a complete and accurate list, and the Sellers have delivered made available to Buyer the Purchaser true and complete copies, of:
(i) each written Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired any of the Subject Companies of an amount or value value, individually or, for a series of related Applicable Contracts, in the aggregate, in excess of $25,00010,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired any of the Subject Companies of an amount or value value, individually or, for a series of related Applicable Contracts, in the aggregate, in excess of $25,00020,000;
(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 any of the Subject Companies, individually or, for a series of related Applicable Contracts, in the aggregate, in excess of $25,00010,000, or receipts of any of the Subject Companies, individually or, for a series of related Applicable Contracts, in the aggregate, in excess of $20,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract of any of the Subject Companies affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract of any of the Subject Companies with respect to patents, trademarks, copyrights, copyrights or other intellectual property, including except agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract of any of the Subject Companies to or with any labor union or other employee representative of a group of employeesemployees and each other written employment or consulting agreement with any employees or consultants;
(vii) each joint venture, partnership, partnership and other Applicable Contract of any of the Subject Companies (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company of the Subject Companies with any other Person;
(viii) each Applicable Contract of any of the Subject Companies containing covenants that in any way purport to restrict the business activity of any Acquired Company of the Subject Companies or any Affiliate of an Acquired Company any of the Subject Companies or limit the 38 40 freedom of any Acquired Company of the Subject Companies or any Affiliate of an Acquired Company any of the Subject Companies to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract of any of the Subject Companies providing for payments to or by any Person based on sales, purchases, purchases or profits, other than direct payments for goods;
(x) 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 of the Subject Companies to be responsible for consequential damages;
(xii) each Applicable Contract of any of the Subject Companies for capital expenditures in excess of $10,000;
(xiii) each Applicable Contract which, to the Knowledge of the Sellers, will result in a material loss to the Subject Companies;
(xiv) each Applicable Contract between a Subject Company and its former or current stockholders, directors, officers and employees (other than standard employment agreements previously furnished to or approved by the Purchaser);
(xv) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company of the Subject Companies other than in the Ordinary Course of Business; and
(xivxvi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(a) of the Disclosure Letter Schedule 5.16 sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of any of the Acquired Subject Companies under the Contracts, and the Acquired Companies' office place where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Sources: Stock Purchase Agreement (Corporate Staffing Resources Inc)
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter Schedules contains a complete and accurate list, and Sellers have Seller has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies AMT Predecessors of an amount or value in excess of $25,00050,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies AMT Predecessors of an amount or value in excess of $25,00050,000;
(iii) each Applicable 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 AMT Predecessors in excess of $25,00050,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 50,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-non- disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company AMT Predecessor with any other Person;
(viii) 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 AMT Predecessor or limit the freedom of any Acquired Company or any Affiliate of an Acquired Company AMT Predecessor to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) 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;
(xiix) each Applicable Contract for capital expenditures in excess of $10,00025,000;
(xiiixi) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company AMT Predecessor other than in the Ordinary Course ordinary course of Businessbusiness; and
(xivxii) 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure LetterSchedules:
(i) neither Except as contemplated by Section 3.22(b), Seller (and no Related Person of either Seller) has or does not have nor may it acquire any rights under, and neither Seller has or may become subject to under any obligation or liability under, any material Contract that relates to the business of, or any of the assets owned or used by, by any Acquired CompanyAMT Predecessor; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] Seller, no officer, director, agent, employee, consultant, manager, member or contractor of any Acquired Company AMT Predecessor is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, manager, member or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired CompanyAMT Predecessor, or (B) assign to any Acquired Company AMT Predecessor 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 LetterSchedules, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter Schedules is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure LetterSchedules:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, AMT Predecessor is in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company AMT Predecessor has or had any obligation or liability or by which such Acquired Company AMT Predecessor or any of the assets owned or used by such Acquired Company AMT Predecessor is bound, except to the extent that failure to be in compliance would not have a material adverse effect on the business, operations or was boundfinancial condition of the AMT Predecessors;
(ii) to the Knowledge of Seller, each other Person that has or had any obligation or liability under any Contract under which an Acquired Company any AMT Predecessor has or had any rights is, and at all times since January 1, 2000 has been, is in full compliance with all applicable terms and requirements of such Contract, except to the extent that such Person's failure to be in compliance would not have a material adverse effect on the business, operations or financial condition of the AMT Predecessors;
(iii) to the Knowledge of Seller, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company AMT Predecessor or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any material Applicable Contract; and
(iv) no Acquired Company AMT Predecessor has given to or received from any other Person, at any time since December 31, 2005, Person any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any material Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company AMT Predecessor under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, Seller, no such Person has made written demand for such renegotiation.
(f) The Contracts relating to As of the saleClosing, design, manufacture, or provision there shall be no Event of products or services by the Acquired Companies have been entered into Default (as defined in the Ordinary Course of Business and have been entered into without Credit Agreement) under the commission of any act alone or Credit Agreement, as may be amended in concert connection with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirementthe Closing.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a4.17(a) of the Disclosure Letter Schedule contains a complete and accurate list, and Sellers have and, to Seller's Knowledge, Seller has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies Housewares of an amount or value in excess of $25,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies Housewares of an amount or value in excess of $25,000;
(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 Housewares in excess of $25,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold Leasehold Estate or other interest in, any real or in personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year25,000);
(v) each licensing agreement or other Applicable Contract with respect to patentsPatents, trademarksMarks, copyrightsCopyrights, Masks, Trades Secrets or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company Housewares with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company Housewares or any Affiliate of an Acquired Company Housewares or limit the freedom of any Acquired Company Housewares or any Affiliate of an Acquired Company Housewares to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) 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 Housewares to be responsible for consequential damages;
(xii) each Applicable Contract for capital expenditures in excess of $10,00025,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company Housewares 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b4.17(b) of the Disclosure LetterSchedule:
(i) neither Seller (and no Related Person of either Seller) Housewares has or may acquire any rights under, and neither Seller no Related Person of Housewares 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 Companyby Housewares; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company Housewares is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired CompanyHousewares, or (B) assign to any Acquired Company Housewares 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 Each Contract identified or required to be identified in Part 3.17(a4.17(a) of the Disclosure Letter Schedule is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d4.17(d) of the Disclosure LetterSchedule:
(i) each Acquired Company Housewares is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company Housewares has or had any obligation or liability or by which such Acquired Company Housewares or any of the assets owned or used by such Acquired Company Housewares is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company Housewares has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company Housewares or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company Housewares has not given to or received from any other Person, Person at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company Housewares under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Applicable Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have Seller has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,00010,000;
(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 $25,00010,000;
(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 $25,00010,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 25,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person;
(viiivii) 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;
(ixviii) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(xix) each power of attorney granted by any Acquired Company to an attorney-in-fact of such Acquired Company that is currently effective and outstanding;
(xix) 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;
(xiixi) each Applicable Contract for capital expenditures in excess of $10,00050,000;
(xiiixii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of Business; and
(xivxiii) 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Sellerother than Acquired Companies or any other party to a property management agreement) has or may no nor shall acquire any rights under, and neither Seller has or may no nor shall become subject to any obligation or liability under, any Applicable Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Applicable Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure LetterLetter and except with respect to matters which have heretofore been concluded without any resultant material adverse impact on the business, operations, assets, condition or prospects of any Acquired Company:
(i) each Acquired Company is, and at all times since January 1, 2000, the date of its respective incorporation has been, in full material compliance with all applicable terms and requirements of each Applicable Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was boundbound (provided, however, that this subparagraph (i) does not require disclosure regarding compliance with any Legal Requirement or Environmental Law in addition to the disclosures required under Sections 3.14 and 3.19);
(ii) 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 is, and at all times since January 1, 2000 has been, in full material compliance with all applicable terms and requirements of such Applicable Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may materially contravene, conflict with, or result in a material violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005the date of its respective incorporation, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Applicable Contract.
(e) There Except as disclosed in Part 3.17(e) of the Disclosure Letter, there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts Applicable Contract with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Applicable Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in material violation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Part Other than with respect to prior Contracts that have been superseded by current Contracts, Section 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered or made available to Buyer true and complete copies, of:
(i) each Applicable Government Contract and Government Subcontract that involves is (a) currently active in performance or (b) has been active in the past and performance has been completed but has not been closed prior to the date of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,000this Agreement;
(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 $25,000100,000;
(iii) each Applicable Contract that involves performance of services or delivery of goods or materials to the Company of an amount or value in excess of $100,000;
(iv) 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 $25,00050,000;
(ivv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 50,000 and with terms of less than one year);
(vvi) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property AssetsAssets excluding any license implied by the sale of a product, perpetual, paid-up licenses for commonly available software programs each with a license fee of less than $10,000 in which Company is licensee, and any licenses granted by a Governmental Body to the Company under a Government Contract listed in Section 3.17(a)(i) of the Disclosure Schedule to use technical data and software furnished to the Company for the limited purpose of performing services for such Governmental Body under and during the term of any such Government Contract;
(vivii) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(viiviii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired the Company with any other Person;
(viiiix) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any Affiliate of an Acquired the Company or limit the freedom of any Acquired the Company or any Affiliate of an Acquired the Company to engage in any line of business or to compete with any Person;
(ixx) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(xxi) each power of attorney or any other agreement entered into by the Company that grants authority to any Person to act on behalf of the Company that is currently effective and outstanding;
(xixii) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired the Company to be responsible for consequential damages;
(xiixiii) each Applicable Contract for capital expenditures in excess of $10,000;50,000; and
(xiiixiv) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of Business; and
(xiv) each amendmentCompany. In addition, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part Section 3.17(a) of the Disclosure Letter sets forth reasonably contains a complete details concerning such Contracts, including the parties to the Contracts, the amount and accurate list of the remaining commitment of the Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are locatedall outstanding Government Bids.
(b) Except as set forth in Part Section 3.17(b) of the Disclosure Letter:
(i) neither Seller None of Sellers (and no Related Person of either any Seller) has or may intends to acquire any rights under, and neither Seller under or has or may intends to 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;
(ii) No Person is currently engaged by the Company as a consultant or to provide any Acquired Companyconsulting services; and
(iiiii) [No Seller and no other officer, director or employee of the Company or, to the Knowledge of Sellers the Company and the Acquired Companies,] no officerSellers, directorany consultant, contractor or agent, employeeof the Company, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such Seller, officer, director, agent, employee, consultant, contractor or contractor agent to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired the Company, or (B) assign to any Acquired the Company or to any other Person any rights to any invention, improvement, or discoverydiscovery relating to the business of the Company.
(c) Except as set forth in Part Section 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part Section 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part Section 3.17(d) of the Disclosure Letter:
(i) each Acquired the Company is, and at all times since January 1, 2000, the date of the respective Contract (A) has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired the Company has or had any obligation or liability or by which such Acquired the Company or any of the assets owned or used by such Acquired the Company is or was bound, (B) has complied in all respects with 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;
(ii) to the Knowledge of Sellers and the Company, each other Person that has or had any obligation or liability under any Contract under which an Acquired the Company has or had any rights is, and at all times since January 1, 2000 the inception of such contract has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired since the date of the respective Contract (including any Contracts which have been superseded by the present Contracts), the Company has not given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There Except as set forth in Section 3.17(e) of the Disclosure Letter, there are no current renegotiations of, attempts or to renegotiatethe Knowledge of Sellers and the Company, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person andor, to the Knowledge of Sellers and the Company, attempts to renegotiate, any material amounts paid or payable to the Company under current or completed Contracts with any Person and no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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. The Company has not knowingly submitted or negotiated a bid or proposal that the Company reasonably believed would result in the award of a Contract that would cause the Company to perform said Contract at a loss or without receipt of a fee.
(g) Except as set forth in Section 3.17(g) of the Disclosure Letter:
(A) the Company has complied and is in compliance with all terms and conditions of each Government Contract or Government Subcontract, (B) the Company has complied in all respects with all requirements for all Legal Requirements or agreements pertaining to each Government Contract or Government Subcontract and (C) all representations certifications and statements executed, acknowledged or set forth in or pertaining to each Government Contract or Government Subcontract including but not limited to any statements made in connection with the Procurement Integrity Law, 41 U.S.C. Section 423, the Lobbying Disclosure Act of 1995, 2 U.S.C. Section 1601-1612, the ▇▇▇▇ Amendment, 31 U.S.C. Section 1352, and their associated implementing regulations were complete and correct in all respects as of their effective date and the Company has complied in all respects with all such representations, certifications and statements;
(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 of or pertaining to any Government Contract or Government Subcontract, (B) no termination for convenience, termination for default, cure notice or show cause notice pertaining to any Government Contract or Government Subcontract (1) has been in effect during the five (5) year period prior to the date of this Agreement, (2) is currently in effect, or (3) is, to the Knowledge of Sellers and the Company, Threatened, (C) no material cost incurred by the Company pertaining to any Government Contract or Government Subcontract (1) has been questioned or challenged by representatives of the Administrative Contracting Officer or the Government Audit Agency, (2) has been disallowed by the U.S. Government, or (3) has been or now is, the subject of any investigation, and (D) no amount of money due to the Company, pertaining to any Government Contract or Government Subcontract has been withheld or set off nor has any claim been made to withhold or set off money, and the Company is entitled to all progress payments either billed or received with respect thereto;
(A) neither the Company nor any of its directors, officers or employees nor, to the Knowledge of the Company and the Sellers, any consultant, contractor or agent of the Company, is or during the past five (5) years has been under administrative, civil or criminal investigation or subject to any indictment, subpoena, document request with respect to any administrative, civil or criminal investigation or similar proceeding by any Governmental Body with respect to any alleged or potential violation of any contract requirement or Legal Requirement pertaining to any Government Contract or Government Subcontract or any alleged noncompliance, 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 any written, or to the Knowledge of Sellers and the Company, oral disclosure to any Governmental Body with respect to any alleged or possible (1) violation of any contract requirement or provision or any certification or representation, (2) violation of any Legal Requirement or (3) noncompliance, misstatement or omission, in each case, 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 arising under or relating to any Government Contract or Government Subcontract and (B) no material disputes between the Company and any Governmental Body under any Government Contract or Government Subcontract, the Contract Disputes Act or any other federal statute or regulation or between the Company and any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Subcontract;
(v) the Company has no interest in any pending or potential claim against any Governmental Body or any prime contractor, subcontractor or vendor arising under or relating to any Government Contract or Government Subcontract, and Section 3.17(g) of the Disclosure Letter lists each Government Contract, Government Subcontract or Government Bid which is currently under audit by any Governmental Body or any other person that is a party to such Government Contract, Government Subcontract or Government Bid;
(vi) neither the Company nor any of its directors, officers or employees nor, to the Knowledge of the Company and the Sellers, any consultant, contractor or agent of the Company, has been Threatened with or debarred, suspended or excluded from participation in the award of Contracts with the DOD or any other Governmental Body or (excluding for this purpose ineligibility to bid on certain contracts due to generally applicable bidding requirements) for any reason listed on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs and no debarment, suspension or exclusion proceeding has been initiated against the Company or any of its directors, officers or employees or, to the Knowledge of the Company and the Sellers, any consultant, contractor or agent of the Company. 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 such Government Contract or Government Subcontract or 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 compliance in all material respects with all Legal Requirements;
(vii) neither the Company nor any of its directors, officers or employees of the Company nor, to the Knowledge of the Company and the Sellers, any consultant, contractor or agent of the Company, have committed (or taken any action to promote or conceal) any violation of any Legal Requirement relating to procurement or in violation of the Foreign Corrupt Practices Act, 15 U.S.C. Sections 78dd-1, 2, the Arms Export Control Act, the International Traffic in Arms Regulations, as amended, the Atomic Energy Act of 1954, as amended, Executive Order 12958 (April 17, 1995), Executive Order 12829 (January 6, 1993), Executive Order 13292 (March 25, 2003), and directives and policies issued pursuant thereto, including, but not limited to, the National Industrial Security Program Operating Manual; and
(viii) the Company was eligible as a small business under 13 C.F.R. 121 at the time it was awarded all of the Government Contracts to which it is a party on the basis of such eligibility (such Government Contracts are set forth in Section 3.17(a) of the Disclosure Letter).
(h) The Company is not a party to any Contract with CAS Cares. There is no Legal Requirement for the Company to contribute to CAS Cares or otherwise to support its activities or operations in any manner.
Appears in 1 contract
Sources: Stock Purchase Agreement (Edo Corp)
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter Exhibit A contains a complete listing of all contracts, agreements or commitments (whether written or oral) described in clauses (i) through (xv) below, to which any Acquired Company is a party. Copies of contracts referred to in clauses (ii) through (xv) have been delivered or made available to WMT. Copies of contracts referred to in clause (i) are available for inspection and accurate list, copying by WMT and Sellers have delivered to Buyer true its agents and complete copies, of:representatives upon written request.
(i) each Applicable Contract that contract, agreement or commitment (whether written or oral), whether in the ordinary course of business or not, which involves performance of services or delivery of goods or materials and/or materials, by one or more Acquired Companies of an any amount or value in excess of $25,000100,000 other than invoices and purchase orders for goods and services in the ordinary course of business;
(ii) each Applicable Contract that involves performance contract, agreement or commitment (whether written or oral) out of services or delivery the ordinary course of goods or materials to one or more Acquired Companies of an amount or value in excess of $25,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves business involving expenditures or receipts of one or more Acquired Companies in excess of $25,000100,000;
(iviii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract contract, agreement or commitment (whether written or oral) affecting the ownership of, leasing of, title to, use of, of or any leasehold or other interest in, any real or personal property of any Acquired Company (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 100,000 and with terms of less than one (1) year);
(viv) each licensing agreement or other Applicable Contract agreement or commitment with respect to patents, trademarks, copyrights, copyrights or other intellectual property, including agreements with current or former employees, consultants, consultants or contractors regarding the appropriation or the non-disclosure nondisclosure of any of the Intellectual Property Assets, as hereinafter defined, of any Acquired Company involving expenditures or receipts of any Acquired Company in excess of $100,000;
(v) each contract, agreement or commitment known to the Stockholders to which any employee, consultant, adviser or contractor of any Acquired Company is bound which in any manner purports to restrict such employee's, consultant's or contractor's freedom to engage in any line of business or to compete with any other person, or assign to any other person such employee's, consultant's or contractor's rights to any invention, improvement or discovery;
(vi) each collective bargaining agreement and or other Applicable Contract contract or commitment to or with any labor union or other employee representative of a group of employeesemployees relating to wages, hours and other conditions of employment of any Acquired Company;
(vii) each joint ventureventure contract, partnership, and partnership arrangement or other Applicable Contract agreement (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company with any other Personperson or party;
(viii) each Applicable Contract contract, agreement or commitment (whether written or oral) containing covenants that which in any way purport to restrict the any Acquired Company's business activity of any Acquired Company or any Affiliate of an Acquired Company or purport to 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 Personperson;
(ix) each Applicable Contract contract, agreement or commitment (whether written or oral) providing for payments to or by any Person person or entity based on sales, purchases, purchases or profits, other than direct payments for goodsgoods relating to any Acquired Company;
(x) each power of attorney that which is currently effective and outstandingoutstanding relating to any Acquired Company;
(xi) each Applicable Contract contract, agreement or commitment (whether written or oral) entered into other than in the Ordinary Course ordinary course of Business that business which contains or provides for an express undertaking by any Acquired Company to be responsible for consequential damages;
(xii) each Applicable Contract contract, agreement, purchase order or commitment (whether written or oral) for capital expenditures in excess of $10,00050,000 relating to any Acquired Company;
(xiii) each written warranty, guaranty, and guaranty or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course ordinary course of Business; andbusiness;
(xiv) each other material agreement to which any Acquired Company is a party or by which any Acquired Company is bound; and
(xv) each amendment, supplement, supplement and modification (whether oral written or writtenoral) 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) To the Stockholders' knowledge, all of the Disclosure Letter:
(icontracts, agreements or commitments listed in Exhibit A pursuant to Section 4.18(a) 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, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is hereof are in full force and effect and is effect, are valid and enforceable in accordance with its their terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has to Stockholders' knowledge no condition exists or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (which, with or without notice or lapse of timetime or both, would constitute a default or a basis for force majeure or other claim of excusable delay or nonperformance thereunder on the part of any Acquired Company or, to the Stockholders' knowledge, a default or a basis for force majeure or other claim of excusable delay or nonperformance thereunder on the part of any other party thereto, which would have a Material Adverse Effect on the Company.
(c) may contraveneOther than in the ordinary course of business, conflict with, or result in a violation or breach there are no current renegotiations of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding contractual rights to renegotiate require renegotiation of, any material amounts paid or payable to any Acquired Company under current or completed Contracts contracts, agreements or commitments with any Person and, person or entity having the contractual or statutory right to demand or require such renegotiation. To the Knowledge knowledge of Sellers and the Company, Stockholders, no such Person person or entity has made written demand for such renegotiation.
(fd) The Contracts contracts, agreements or commitments relating to the sale, design, manufacture, manufacture or provision of products or services by the any Acquired Companies Company have been entered into in the Ordinary Course ordinary course of Business business and have been entered into without the commission of any act alone or in concert with any other Personperson, or any consideration having been paid or promised, that which is or would be in violation of any Legal Requirementapplicable law.
Appears in 1 contract
Sources: Stock Purchase Agreement (Western Micro Technology Inc)
Contracts; No Defaults. (a) Part Section 3.17(a) of the Disclosure Letter contains a complete and accurate list, and except as set forth in the second paragraph of Section 3.17(a) of the Disclosure Letter, Sellers have delivered to Buyer Buyers true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,000100,000;
(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 $25,000100,000;
(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 in excess of $25,000100,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 100,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person;
(viii) 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;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) 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 consequential, incidental, special or punitive damages, for lost profits, or otherwise requires any Acquired Company to indemnify any other Person for such other Person's own negligence;
(xii) each Applicable Contract for capital expenditures in excess of $10,000100,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of Business; and
(xiv) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part Except as set forth in the second paragraph of Section 3.17(a) of the Disclosure Letter, Section 3.17(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part Section 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of the Sellers nor any Affiliate of either Seller) of the Sellers has or may acquire any rights under, and neither Seller 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 Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part Section 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part Section 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part Section 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 2002 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31January 1, 20052002, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Sources: Stock Purchase Agreement (Maverick Tube Corporation)
Contracts; No Defaults. (a) Part 3.17(aSection 3.15(a) of the Sellers’ Disclosure Letter Schedule contains a complete and an accurate list, and Sellers have delivered to Buyer true and complete copies, list of:
(i) each Applicable material Company Contract that involves performance of services or delivery of goods or materials by one the Company;
(ii) each Company Contract that involves performance of services for or more Acquired Companies delivery of goods or materials to the Company of an amount or value in excess of $25,000;
(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 $25,000US$50,000;
(iii) each Applicable Company Contract that was not entered into in the Ordinary Course of Business and that involves expenditures the expenditure or receipts receipt by the Company of one an amount or more Acquired Companies value in excess of $25,000US$50,000;
(iv) each leaseCompany Contract that is a (A) mortgage, rental or occupancy agreementindenture, licensenote, installment and conditional sale obligation or other instrument relating to the borrowing of money, (B) letter of credit, bond or other indemnity (including letters of credit, bonds or other indemnities as to which the Company is the beneficiary but excluding endorsements of instruments for collection in the Ordinary Course of Business) or (C) currency or interest rate swap, collar or hedge agreement, and other Applicable ;
(v) each Company 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 personal property leases and installment and conditional sales agreements having (A) a value per item or aggregate payments of less than $10,000 US$50,000 and with terms (B) a term of less than one year);
(vvi) each licensing agreement or other Applicable Company Contract with respect to patents, trademarks, copyrights, or other intellectual property, Intellectual Property (including agreements Contracts with current or former employees, consultants, consultants or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property), except for any license implied by the sale of a product and perpetual, paid-up licenses for commonly available software programs with a value of less than US$50,000 under which the Company is the licensee, and the list identifies those pursuant to which the Company uses Intellectual Property Assetsowned by a third party;
(vivii) each collective bargaining agreement and other Applicable Company Contract to or with any labor union or other employee representative of a group of employees;
(viiviii) each joint venture, partnership, and other Applicable Company Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities Liabilities by any Acquired the Company with any other Person;
(viiiix) each Applicable Company Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate of an Acquired the Company or limit the freedom of any Acquired Company or any Affiliate of an Acquired the Company to engage in any line of business or to compete with any Person;
(ixx) each Applicable Company Contract providing for payments to or by any Person based on or determined by reference to sales, purchases, purchases or profits, other than direct payments for goods; outstanding;
(xxi) each power of attorney that is currently effective and outstanding;and
(xixii) each Applicable Company Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired the Company to be responsible for consequential damages;
(xiixiii) each Applicable Company Contract for capital expenditures in excess of $10,000;US$50,000; and
(xiiixiv) each written warranty, guaranty, and guaranty or other similar undertaking with respect to contractual performance 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth Sellers have delivered to Buyer a true and complete copy (in Part 3.17(bthe case of each written Company Contract) or an accurate and complete written summary (in the case of each oral Company Contract) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any each of the assets owned or used by, any Acquired Company; and
(iiCompany Contracts listed on Section 3.15(a) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discoverySellers’ Disclosure Schedule.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Each Company Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of . Neither the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1, 2000, nor any other party to a Company Contract has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or Contravened any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such a Company Contract;
(iii) no . No event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, constitute or result directly or indirectly in a violation or breach ofContravention of any Company Contract. To Sellers’ Knowledge, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has not given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral written or writtenoral) regarding any actual, alleged, possible, alleged or potential violation or breach of, or default under, Contravention of any Company Contract.
(ed) No party to a Company Contract has repudiated any provision of it. There currently are no renegotiations of, attempts to renegotiate, renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Company Contracts, nor has any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiationrenegotiation been made. No Seller has Knowledge that any party to a Company Contract does not intend to renew it.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Sources: Stock Purchase Agreement
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer The Data Room Documents include true and complete copiescopies of (collectively, of:the "Material Contracts"):
(i) each Applicable Contract to which an Acquired Company is a party that is currently in effect on a continual basis and involves performance of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,000150,000 per year;
(ii) each Applicable Contract to which an Acquired Company is a party that is currently in effect on a continual basis and involves performance of services or delivery of goods or materials to one or more Acquired Companies of an amount or value in excess of $25,000150,000 per year;
(iii) each Applicable Contract to which an Acquired Company that is currently in effect on a continual basis and 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 $25,00075,000 per year;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting to which an Acquired Company is a party that affects the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property that is currently in effect on a continual basis (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and 50,000 or with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to which an Acquired Company is a party that is currently in effect on a continual basis and relates to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract Contracts to or which an Acquired Company is a party that is currently in effect on a continual basis with any labor union or other employee representative of a group of employeesemployees entered into by any Acquired Company;
(vii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person;
(viii) each Applicable Contract currently in effect on a continual basis containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate 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 PersonCompany;
(ix) each Applicable Contract providing to which an Acquired Company is a party that is currently in effect on a continual basis and provides for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) each power of attorney that is currently effective and outstanding;
(xi) each Applicable Contract to which an Acquired Company is a party that is currently in effect on a continual basis 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 to which an Acquired Company is a party that is currently in effect on a continual basis for capital expenditures in excess of $10,00050,000 per year;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of Business;
(xiv) each Contract to which an Acquired Company is a party that is currently in effect that contains a term of longer than one year and is not terminable by the Acquired Company party thereto without penalty on notice of six months or less; and
(xivxv) 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of Other than the Disclosure Letter:
(i) neither Management and Noncompetition Agreements applicable to each Seller, no Seller (and no Related Person of either any Seller) has or may acquire any rights under, and neither no Seller has or may become subject to any obligation or liability under, any Contract to which any Acquired Company is a party that relates to the business of, or any of the assets owned or used by, any Acquired Company; and.
(iic) [to the Knowledge of Sellers and the Acquired Companies,] To Sellers' Knowledge, 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 (Ai) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (Bii) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(cd) Except as set forth in Part 3.17(cWith respect to each Material Contract:
(i) of the Disclosure Letter, each such Material Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.effect;
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(iii) each Acquired Company is, and at all times since January 1, 2000, during the term thereof has been, in full compliance in all material respects with all applicable the terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was boundMaterial Contract;
(iiiii) to Sellers' Knowledge, each other Person that has or had any obligation or liability under any such Material Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 during the term thereof has been, in full compliance in all material respects with all applicable terms and requirements of such Material Contract;
(iiiiv) to Sellers' Knowledge, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable such Material Contract; and
(ivv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, Person any notice or other communication (whether oral or writtenwritten or, to Sellers' Knowledge, oral) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any such Material Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts any Material Contract with any Person and, to the Knowledge of Sellers and the Company, Sellers’ Knowledge, no such Person has made written demand for such renegotiation.
(f) The Material Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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) No Acquired Company has entered into any Contract that gives a party to such Contract, other than an Acquired Company, 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 such Contract solely as a result of the termination or resignation of any director or officer of such Acquired Company.
(h) Except as Fairly Disclosed in the Data Room Documents, neither the Company's execution and delivery of this Agreement and the Transaction Documents to which the Company is a party, nor the consummation of the Contemplated Transactions, will, directly or indirectly (with or without notice or lapse of time), contravene, conflict with, or result in a violation or breach of any provision of, or give any Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify any Material Contract.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter Schedule 5.14 contains a complete and accurate list, and Sellers have Seller has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services licensing agreement or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,000other contract with respect to software (collectively, the “Software Licenses”);
(ii) each Applicable Contract contract with respect to the providing of consulting services by Seller or any of its employees or agents, excluding those related exclusively to the New Business (collectively, the “Consulting Contracts”);
(iii) 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 $25,00010,000, excluding those related exclusively to the New Business;
(iiiiv) each Applicable Contract contract (other than the Software Licenses and the Consulting Contracts) that was not entered into in the Ordinary Course ordinary course of the Business and that involves expenditures or receipts of one or more Acquired Companies Seller in excess of $25,00010,000;
(ivv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract contracts affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year), excluding those related exclusively to the New Business;
(vvi) each licensing agreement or other Applicable Contract contract (other than the Software Licenses) with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property AssetsProperty;
(vivii) each collective bargaining agreement and other Applicable Contract contract to or with any labor union or other employee representative of a group of employees, excluding those related exclusively to the New Business;
(viiviii) each joint venture, partnership, and other Applicable Contract contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company Seller with any other Personperson, excluding those related exclusively to the New Business;
(viiiix) each Applicable Contract contract containing covenants that in any way purport to restrict the business activity Business of any Acquired Company Seller or any Affiliate of an Acquired Company its affiliates or limit the freedom of any Acquired Company Seller or any Affiliate of an Acquired Company its affiliates to engage in any line of business the Business or to compete with any Personperson;
(ixx) each Applicable Contract contract providing for payments to or by any Person person based on sales, purchases, or profits, other than direct payments for goods;
(x) each power of attorney that is currently effective and outstanding, excluding those related exclusively to the New Business;
(xi) each Applicable Contract contract entered into other than in the Ordinary Course ordinary course of the Business that contains or provides for an express undertaking by any Acquired Company Seller to be responsible for consequential damages;
(xii) each Applicable Contract contract for capital expenditures in excess of $10,000, excluding those related exclusively to the New Business;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company Seller other than in the Ordinary Course ordinary course of the 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 Schedule 5.14 sets forth reasonably complete details concerning such Contractscontracts, including the parties to the Contractscontracts, the amount of the remaining commitment of the Acquired Companies Seller under the Contractscontracts, and the Acquired Companies' Seller’s office where details relating to the Contracts contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither No stockholder of Seller (and no Related Person affiliate of either any stockholder of Seller) has or may acquire any rights under, and neither no stockholder of Seller has or may become subject to any obligation or liability under, any Contract contract that relates to the business of, or any of the assets Purchased Assets owned or used by, any Acquired CompanySeller; and
and (ii) [to the Knowledge knowledge of Sellers and the Acquired Companies,] Seller, no officer, director, agent, employee, consultant, or contractor of any Acquired Company Seller is bound by any Contract contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired CompanyBusiness, or (B) assign to any Acquired Company Seller or to any other Person 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 Each contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter Schedule 5.14 is in full force and effect and and, to the knowledge of Seller, is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company Seller is, and at all times since January 131, 20002008, has been, in full compliance with all applicable terms and requirements of each Contract contract under which such Acquired Company it has or had any obligation or liability or by which such Acquired Company it or any of the assets owned or used by such Acquired Company it is or was bound;
, except where the failure to so comply would not reasonably be expected to have a Material Adverse Effect on the Business or the Purchased Assets; (ii) to the knowledge of Seller, each other Person person that has or had any obligation or liability under any Contract contract under which an Acquired Company it has or had any rights is, and at all times since January 131, 2000 2008, has been, in full compliance with all applicable terms and requirements of such Contract;
contract, except where the failure to so comply would not reasonably be expected to have a Material Adverse Effect on the Business or the Purchased Assets; (iii) to the knowledge of Seller, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company Seller or other Person person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contractcontract; and
and (iv) no Acquired Company Seller has not given to or received from any other Personperson, at any time since December January 31, 20052008, any written notice or other written communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contractcontract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company Seller under current or completed Contracts contracts with any Person person and, to the Knowledge knowledge of Sellers and the Company, Seller, no such Person person has made written demand for such renegotiation.
(f) The Contracts contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies Seller have been entered into in the Ordinary Course ordinary course of the Business and and, to the knowledge of the Seller, have been entered into without the commission of any act alone or in concert with any other Personperson, or any consideration having been paid or promised, that is or would be in violation of any Legal RequirementFederal or state law.
Appears in 1 contract
Contracts; No Defaults. (a) 3.15.1. Part 3.17(a3.15(1) of the Disclosure Letter Schedule contains a complete and accurate list, and Sellers Page and the Stockholders have delivered to Buyer IPI true and complete copies, of:
(ia) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies Page of an aggregate amount or value in excess of $25,0001,000;
(iib) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies Page of an aggregate amount or value in excess of $25,0001,000;
(iiic) 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 Page in excess of $25,0001,000;
(ivd) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 1,000 and with terms of less than one year);
(ve) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure nondisclosure of any of the Intellectual Property Assets;
(vif) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(viig) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company Page with any other Person;
(viiih) 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 Page or limit the freedom of any Acquired Company or any Affiliate of an Acquired Company Page to engage in any line of business or to compete with any Person;
(ixi) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(xj) each power of attorney that is currently effective and outstanding;
(xik) 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 Page to be responsible for consequential damages;
(xiil) each Applicable Contract for capital expenditures in excess of $10,0001,000;
(xiiim) each written warranty, guaranty, and or and/or other similar undertaking with respect to contractual performance extended by any Acquired Company Page other than in the Ordinary Course of Business; and
(xivn) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(a) 3.15 of the Disclosure Letter Schedule sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Companies Page under the Contracts, and the Acquired Companies' location in Page's office where details relating to the Contracts are located.
(b) 3.15.2. Except as set forth in Part 3.17(b) 3.15.2 of the Disclosure LetterSchedule:
(ia) neither Seller no stockholder of Page (and no nor any Related Person of either Sellerany stockholder) has or may acquire any rights under, and neither Seller no stockholder of Page 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 CompanyPage; and
(iib) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company Page is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired CompanyPage, or (B) assign to any Acquired Company Page or to any other Person any rights to any invention, improvement, or discovery.
(c) 3.15.3. Except as set forth in Part 3.17(c) 3.15.3 of the Disclosure LetterSchedule, each Contract identified or required to be identified in Part 3.17(a) 3.15.1 of the Disclosure Letter Schedule is in full force and effect and is valid and enforceable in accordance with its terms.
(d) 3.15.4. Except as set forth in Part 3.17(d) 3.15.4 of the Disclosure LetterSchedule:
(ia) each Acquired Company is, and at all times since January 1, 2000, has been, Page is in full compliance with all applicable terms and requirements of each material Contract under which such Acquired Company Page has or had any obligation or liability or by which such Acquired Company Page or any of the assets owned or used by such Acquired Company Page is or was bound;
(iib) to the knowledge of Page and the Stockholders, each other Person that has or had any obligation or liability under any material Contract under which an Acquired Company Page has or had any rights is, and at all times since January 1, 2000 has been, is in full compliance with all applicable terms and requirements of such Contract;
(iiic) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company Page or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any material Applicable Contract; and
(ivd) no Acquired Company Page has neither given to or received to, nor received, from any other Person, Person at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) 3.15.5. There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company Page under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) 3.15.6. The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies Page 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(aSchedule 2.18(a) of the Disclosure Letter contains a an accurate and complete and accurate list, and Sellers have delivered Seller has made available to Buyer true Purchaser accurate and complete copies, of:
(i) each Applicable Contract included in the Acquired Assets that involves performance of services or delivery of goods or materials by one or more Acquired Companies either Company of an a remaining amount or value in excess of $25,000150,000 other than Contracts for Transferred Projects and Customer Orders;
(ii) each Applicable Contract included in the Acquired Assets that involves performance of services or delivery of goods or materials to one or more Acquired Companies either Company of an a remaining amount or value in excess of $25,000150,000, except with respect to any such Contract that is entered into for the procurement of services, goods or materials for a Transferred Project disclosure will be made on schedule 2.18(a) only if the remaining amount or value for such Contract is in excess of $500,000;
(iii) each Applicable Contract of either Company relating to the Business 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 $25,000Business;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year)Lease;
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property AssetsAssets that is material to the Business;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union covering the Transferred Employees or other employee representative of a group of employeesthe Transferred Employees relating to wages, hours, and other conditions of employment;
(vii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired binding on either Company with any other Person;
(viii) each Applicable Contract after Closing containing covenants that in any way purport to restrict the either Company's 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 the Company to engage in any line of business or to compete with any Person;
(ixviii) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) each power a description of the types of powers of attorney of either of the Companies that is are currently effective and outstanding;
(xiix) each Applicable Contract entered into other than included 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 Assets for capital expenditures by either Company having a remaining balance in excess of $10,000150,000;
(xiiix) with respect to the Business, each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired the Company other than in the Ordinary Course of BusinessBusiness and other than Contracts relating to Transferred Projects or Customer Orders or to completed projects which will be Seller's responsibility after Closing;
(xi) each Contract included in the Acquired Assets providing for commissions payable by either of the Companies in respect of sales by either of the Companies; and
(xivxii) 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:Schedule 2.18(b):
(i) neither as of the Closing, Seller (and no Related Person of either Seller) has or may acquire will not have any rights under, and neither Seller has or may will not become subject to any obligation or liability under, any Contract that relates to the business ofof either Company, or any of the assets owned or used byAcquired Assets except for the Seller Liabilities and the rights, benefits, liabilities and obligations of any Acquired CompanyContract relating thereto and except for the Excluded Assets; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] Seller, no officer, director, agent, employee, consultant, or contractor of any Acquired either Company who is a Transferred Employee is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired CompanyBusiness, or (B) assign to any Acquired the Company or to any other Person any rights to any invention, improvement, or discoverydiscovery relating to the Business.
(c) Except as set forth in Part 3.17(cSchedule 2.18(c):
(i) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(aSchedule 2.18(a) of the Disclosure Letter is in full force and effect and is valid and enforceable against the respective Company that is a party thereto and to Seller's Knowledge, against the other party or parties thereto in accordance with its terms; and
(ii) each Contract identified or required to be identified in Schedule 2.18(a) does not require the consent or approval of the other party to such Contract in connection with consummation of the sale of the Shares by Seller to Purchaser.
(d) Except as set forth in Part 3.17(d) of Schedule 2.18(d), as to the Disclosure Letter:Contracts identified or required to be identified in Schedule 2.18(a):
(i) to the Knowledge of Seller, each Acquired Company is, and at all times since January 1, 2000, has been, is in full compliance with all applicable terms and requirements of each Contract under which except where such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of failure would not have, and would not reasonably be expected to have, in the assets owned or used by such Acquired Company is or was boundaggregate a Material Adverse Effect on the Business;
(ii) to the Knowledge of Seller, each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, is in full compliance with all applicable terms and requirements of such Contract;, except where such failure would not have, and would not reasonably be expected to have, in the aggregate a Material Adverse Effect on the Business; and
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired neither Company has given to or or, to Seller's Knowledge, received from any other Person, at any time since December 31, 2005, Person any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any ContractContract that would have, or would reasonably be expected to have, in the aggregate a Material Adverse Effect on the Business.
(e) There Except as disclosed in Schedule 2.18(e), there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired the Company under current or completed any Contracts included in the Acquired Assets with any Person and, having the contractual or statutory right to the Knowledge of Sellers demand or require such renegotiation and the Company, , no such Person has made written demand for such renegotiationrenegotiation that would have, or would reasonably be expected to have, in the aggregate a Material Adverse Effect on the Business.
(f) The Contracts Each Contract listed in Schedule 2.18(a) relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies have either Company has been entered into in the Ordinary Course of Business of the Company and have has been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal RequirementLaw.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(aSCHEDULE 3.16(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,000the Company;
(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 $25,0005,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course ordinary course of Business business and that involves or could involve expenditures or receipts of one or more Acquired Companies the Company in excess of $25,0005,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 5,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired the Company with any other Person;
(viiivii) 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 the Company or limit the freedom of any Acquired Company or any Affiliate of an Acquired the Company to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(xviii) each power of attorney that is currently effective and outstanding;; 14
(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;
(xiiix) each Applicable Contract for capital expenditures in excess of $10,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of Business5,000; and
(xivx) 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:SCHEDULE 3.16(b):
(i) neither no Seller (and no Related Person of either or any person related to 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
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired 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 any Acquired the Company, or (B) assign to any Acquired 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 LetterSCHEDULE 3.16(c), each Contract identified or required to be identified in Part 3.17(aSCHEDULE 3.16
(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:SCHEDULE 3.16(d):
(i) each Acquired the Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired the Company has or had any obligation or liability or by which such Acquired the Company or any of the assets owned or used by such Acquired the Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired the Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired the Company has not given to or received from any other Person, at any time since December 31, 2005time, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(aSchedule 2.19(a) of the Disclosure Letter contains a an accurate and complete and accurate list, and Sellers have Seller has delivered to Buyer true accurate and complete copies, of:
(i) each Applicable Seller Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies Seller of an amount or value in excess of fifty thousand dollars ($25,00050,000) annually;
(ii) each Applicable 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 fifty thousand dollars ($25,00050,000) annually;
(iii) each Applicable 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 twenty thousand dollars ($25,00020,000) annually;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable 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 personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than twenty thousand dollars ($10,000 20,000) annually and with terms a term of less than one year);
(v) each licensing agreement or other Applicable Seller Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employeesemployees relating to wages, hours and other conditions of employment;
(viivi) each joint venture, partnership, and other Applicable Seller Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company Seller with any other Person;
(viiivii) each Applicable Seller Contract containing covenants that in any way purport to restrict the Seller’s 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 Seller to engage in any line of business or to compete with any Person;
(ixviii) each Applicable Seller Contract providing for payments to or by any Person based on sales, purchases, purchases or profits, other than direct payments for goodsgoods or services;
(xix) each power of attorney of Seller that is currently effective and outstanding;
(xix) each Applicable Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired Company Seller to be responsible for consequential damages;
(xiixi) each Applicable Seller Contract for capital expenditures in excess of twenty thousand dollars ($10,00020,000);
(xii) 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 extended by any Acquired Company Seller other than in the Ordinary Course of Business; and
(xiv) each amendment, supplement, supplement and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(aSchedule 2.19(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, Contracts and the amount dates of the remaining commitment of the Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and Schedule 2.19(b), no Related Person of either Seller) Shareholder has or may acquire any rights under, and neither Seller no Shareholder has or may become subject to any obligation or liability under, any Contract that relates to the business of, of Seller or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discoveryAssets.
(c) Except as set forth in Part 3.17(cSchedule 2.19(c):
(i) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(aSchedule 2.19(a) of the Disclosure Letter 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 2.19(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 Knowledge of Seller, no Contract identified or required to be identified in Schedule 2.19(a) and which is to be assigned to or assumed by Buyer under this Agreement will upon completion or performance thereof have a material adverse effect 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 Part 3.17(d) of the Disclosure Letter:Schedule 2.19(d):
(i) each Acquired Company Seller is, and at all times since January 1December 31, 2000, 2016 has been, in full material compliance with all applicable terms and requirements of each Seller Contract under which such Acquired Company has or had any obligation or liability or is being assumed by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was boundBuyer;
(ii) to the Knowledge of Seller, each other Person that has or had any obligation or liability under any Seller Contract under which an Acquired Company has or had any rights is being assigned to Buyer is, and at all times since January 1December 31, 2000 2016, has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) to the Knowledge of Seller, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, with or result in a violation or breach Breach of, or give any Acquired Company Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate, terminate or modify, any Applicable ContractSeller Contract that is being assigned to or assumed by Buyer;
(iv) 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 the creation of any Encumbrance affecting any of the Assets; and
(ivv) no Acquired Company Seller has not given to or received from any other Person, at any time since December 31, 20052016, any 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 ContractContract which is being assigned to or assumed by Buyer.
(e) There are no renegotiations of, attempts to renegotiate, renegotiate or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company Seller under current or completed Contracts with any Person and, having the contractual or statutory right to the Knowledge of Sellers demand or require such renegotiation and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts Each Contract relating to the sale, design, manufacture, manufacture or provision of products or services by the Acquired Companies have Seller has been entered into in the Ordinary Course of Business of Seller and have has been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(aAnnex 5.17(a) of the Disclosure Letter to this Schedule B contains a complete and accurate list, and Sellers have delivered Cinemex has, in the case of written Contracts, made available to Buyer Buyers true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired of the Cinemex Companies of an amount or value in excess of $25,0001,000,000 pesos (excluding Contracts that are terminable by a Cinemex Company without penalty or cost to the Cinemex Companies in excess of $1,000,000 pesos);
(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 $25,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or other liabilities and/or receipts of one or more Acquired of the Cinemex Companies in excess of $25,0001,000,000 pesos (excluding Contracts that are terminable by a Cinemex Company without penalty or cost to the Cinemex Companies in excess of $1,000,000 pesos);
(iii) each loan agreement, promissory note, bond, letter of credit or other Applicable Contract evidencing Cinemex Indebtedness or any guarantee or similar obligation of any Cinemex Company with respect to indebtedness for borrowed money or any other similar payment obligation of any Person (other than any Cinemex Company);
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other similar interest in, any real or personal property (except any personal property leases and installment and conditional sales agreements lease having a value per item or aggregate payments of less than $10,000 1'000,000 pesos and with terms a term of less than one (1) year);
(v) each material licensing agreement or other material Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any intellectual property other than (x) any licensing agreements or other Applicable Contracts entered into by any Cinemex Company in the Ordinary Course of Business which primarily relate to the Intellectual Property Assetsexhibition by such Cinemex Company of a particular motion picture or (y) "shrink-wrap" or other software licenses generally available from commercial venders or retailers which do not require ongoing royalty payments;
(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 other similar Applicable Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Cinemex Company with any other Person, excluding Contracts entered into in the Ordinary Course of Business by a Cinemex Company;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Cinemex Company or any Affiliate affiliate of an Acquired any Cinemex Company or limit the freedom of any Acquired Cinemex Company or any Affiliate affiliate of an Acquired any Cinemex Company to engage in any line of business or to compete with any PersonPerson or in any territory;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods, excluding Contracts entered into in the Ordinary Course of Business by a Cinemex Company;
(x) other than those held by Messrs. Davila, Fastlicht and Heyman, each power of attorney for (A) ac▇▇ ▇▇ ownership, (B) a▇▇▇ ▇▇ management or (C) to subscribe or execute negotiable instruments, in each case, that is currently effective and outstandingoutstanding and which will not be terminated prior to the Closing;
(xi) each Applicable Contract entered into other than under which a Cinemex Company is committed for individual capital expenditures in the Ordinary Course excess of Business that contains $2'500,000 pesos or provides for an express undertaking by any Acquired Company to be responsible for consequential damagesaggregate capital expenditures in excess of $10'000,000 pesos;
(xii) each Applicable Contract for capital expenditures in excess of $10,000;
(xiii) each written warrantyemployment, guaranty, and consulting or other similar undertaking Applicable Contract with respect employees or consultants of any Cinemex Company remaining in effect after the Closing Date and which are not terminable at the will of the applicable Cinemex Company without cost or liability to contractual performance extended by any Acquired Company other than in the Ordinary Course of BusinessCinemex Company; and
(xivxiii) 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(bAnnex 5.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [this Schedule B to the Knowledge of Sellers and the Acquired Companies,] Cinemex no officer, director, agent, key employee, consultant, consultant or contractor of any Acquired Cinemex Company is bound by any Contract that purports to limit the ability of such officer, director, agent, key employee, consultant, or contractor to (Ai) engage in or continue any conduct, activity, or practice relating material to the business of any Acquired Cinemex Company, or (Bii) assign to any Acquired Cinemex Company or to any other Person any rights to any invention, improvement, improvement or discovery.
(c) Except as set forth in Part 3.17(cAnnex 5.17(c) of the Disclosure Letterto this Schedule B, each Contract identified or required to be identified in Part 3.17(aAnnex 5.17
(a) of the Disclosure Letter to this Schedule B is in full force and effect and is valid and enforceable against the Cinemex Company party thereto in accordance with its terms.
(d) Except as set forth in Part 3.17(dAnnex 5.17(d) of the Disclosure Letterto this Schedule B:
(i) each Acquired Cinemex Company is, and at all times since January 1, 2000, 2002 has been, in full substantial compliance with all applicable material terms and requirements of each material Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was boundidentified on Annex 5.17
(a) to this Schedule B;
(ii) to the Knowledge of Cinemex, each other Person that has or had any material obligation or liability under any material Contract under which an Acquired Company has identified or had any rights required to be identified on Annex 5.17
(a) to this Schedule B is, and at all times since January 1, 2000 2002 has been, in full substantial compliance with all applicable material terms and requirements of such Contract;
(iii) to the Knowledge of Cinemex, no event has occurred or circumstance exists that (with or without notice or lapse of time) may would reasonably be expected to contravene, conflict with, or result in a violation or breach of, or give (x) any Acquired Person other than a Cinemex Company or other Person (y) to the Knowledge of Cinemex, any Cinemex Company the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contractmaterial Contract identified on Annex 5.17(a) to this Schedule B; and
(iv) no Acquired Cinemex Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other written communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.material Contract on Annex 5.17(a) to this Schedule B; and
(ev) There there are no pending renegotiations of, current attempts to renegotiate, or outstanding rights to renegotiate any material terms and conditions or material amounts paid or payable to any Acquired Cinemex Company under current or completed any of the material Contracts identified on Annex 5.17(a) to this Schedule B with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Sources: Stock Purchase Agreement (Loews Cineplex Entertainment Corp)
Contracts; No Defaults. (a) Part 3.17(aSchedule 5.20(a) of the Disclosure Letter contains a an accurate and complete and accurate list, and Sellers have delivered Seller has made available to Buyer true through Seller’s electronic data room accurate and complete copies, of:
(i) each Applicable Seller Contract related to the Distillery Business that involves performance of services or delivery of goods or materials by one or more Acquired Companies to Seller of an amount or value in excess of $25,000;
(ii) each Applicable Contract that involves performance Lease by or to Seller of services real or delivery of goods or materials personal property related to one or more Acquired Companies of an amount or value in excess of $25,000the Distillery Business;
(iii) each Applicable 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 in excess of $25,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employeesemployees relating to wages, hours and other conditions of employment;
(viiiv) each joint venture, partnership, and other Applicable Seller Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities Liabilities by any Acquired Company Seller with any other Person;
(viiiv) each Applicable Seller Contract containing covenants that in any way purport to restrict the Seller’s business activity of any Acquired Company activity, that contains a “most favored nations” provision or any Affiliate of similar provision regarding an Acquired Company adjustment in pricing or limit limits the freedom of any Acquired Company or any Affiliate of an Acquired Company Seller to engage in any line of business or to compete with any Person;
(ixvi) each Applicable Seller Contract relating to the Distillery Business providing for payments to or by any Person based on sales, purchases, purchases or profits, other than direct payments for goodsgoods or services;
(xvii) each power of attorney of Seller relating to the Distillery Business that is currently effective and outstanding;
(xiviii) each Applicable Seller Contract entered into other than in relating to the Ordinary Course of Distillery 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 ($10,00025,000);
(xiiiix) each Seller Contract relating to the Distillery Business not denominated in U.S. dollars;
(x) each written warranty, guaranty, and or guaranty and/or other similar undertaking with respect to contractual performance extended by any Acquired Company Seller related to the Distillery Business other than in the Ordinary Course of Business;
(xi) each Seller Contract with an Affiliate of Seller or Parent Company or an Affiliate of Parent Company;
(xii) each Seller Contract which has a term in excess of one year;
(xiii) each Seller Contract pursuant to which Seller stores or warehouses raw materials, products, goods or inventory not owned by Seller whether denominated as a warehouse agreement, aging agreement or otherwise (“Warehouse Agreements”) and providing for storage fees in excess of $10,000 per year; and
(xiv) each amendment, supplement, 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(bSchedule 5.20(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(aSchedule 5.20(a) of the Disclosure Letter 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; and (ii) each Contract identified or required to be identified in Schedule 5.20(a) and which is being assigned to or assumed by Buyer is assignable by Seller to Buyer without the Consent of any other Person.
(dc) Except as set forth in Part 3.17(dSchedule 5.20(c) of the Disclosure Letter:
(i) each Acquired Company Seller is, and at all times since January 1, 2000, has been, in full material compliance with all applicable terms and requirements of each Seller Contract under which such Acquired Company has or had any obligation or liability or is being assumed by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
Buyer; (ii) each other Person that has or had any obligation or liability under any Seller Contract under which an Acquired Company has or had any rights is being assigned to Buyer is, and at all times since January 1, 2000 has been, in full material compliance with all applicable terms and requirements of such Contract;
; and (iii) no event Seller has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has not given to or received from any other Person, at any time since December 31, 2005, any 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 ContractContract which is being assigned to or assumed by Buyer.
(ed) There are no renegotiations of, attempts to renegotiate, renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Seller under any Acquired Company under current or completed Contracts executory Contract relating to the Distillery Business with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a4.16(a) of the Sellers Disclosure Letter Schedule contains a complete and accurate listlist as of the date hereof, and Sellers have the Company has delivered or specifically identified and made available to Buyer true and complete copies, of:of the following Contracts (other than those that were entered into in the Ordinary Course of Business consistent with past practice or that will terminate by their terms within sixty (60) days of the date hereof or that are terminable upon no more than sixty (60) days' notice without any material termination or similar fee coming due from the applicable Acquired Company) (the "MATERIAL CONTRACTS"):
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,000250,000;
(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 $25,000250,000;
(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 $25,000250,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, of or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 250,000 and with terms of less 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, consultants, consultants or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate affiliate of an Acquired Company or limit the freedom of any Acquired Company or any Affiliate affiliate of an Acquired Company to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, purchases or profits, other than direct payments for goods;
(x) 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 $10,000500,000;
(xiii) each written warranty, guaranty, guaranty and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of Business; and;
(xiv) each Applicable Contract granting the right to acquire assets, equity securities or other securities of or other direct or indirect ownership interest in any Person (other than Acquired Companies) of a value in excess of $250,000; and
(xv) each amendment, supplement, 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither No Seller (and no Related Person of either SellerPerson) has or may acquire any rights under, and neither 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 CompanyMaterial Contract; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no No officer, director, agent, employee, consultant, director or contractor Significant Employee of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, officer or contractor director to (A) engage in or continue any conduct, activity, 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, improvement or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Contracts; No Defaults. (a) With the exception of Publishing Contracts, Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,00050,000.00;
(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 $25,00050,000.00;
(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 in excess of $25,00050,000.00;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year)50,000.00) owned or used by an Acquired Company;
(v) each material licensing agreement or other Applicable Contract with respect to patentsProprietary Rights of an Acquired Company, trademarksincluding, copyrightswithout limitation, or other intellectual property, including agreements with current or former employees, consultantsconsultants (software consultants and other), software and hardware vendors or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property AssetsProprietary Rights and agreements pursuant to which any Person has been granted an ownership interest in or a license to use Proprietary Rights of an Acquired Company;
(vi) each collective bargaining agreement and other Applicable Contract to or that any Acquired Company has with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person;
(viii) each Applicable Contract containing covenants that in any way directly or indirectly 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 Related Person of an Acquired Company to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for annual payments in excess of $50,000 by an Acquired Company to any Person or by any Person to an Acquired Company (including, without limitation, all Contracts that the Acquired Companies have with sales representatives) based on sales, purchases, or profits, other than direct payments for goods;
(x) 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 by an express undertaking by any Acquired Company to be responsible for consequential damages;
(xii) each Applicable Contract providing for capital expenditures in excess of $10,00050,000.00;
(xiiixii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of Business;
(xiii) each Contract by an Acquired Company with illustrators, artists and advisors with respect to the content and subject matter of published books or books being considered for publication providing for payments in excess of $7,500; 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the All Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other 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 listed in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its termsare herein called the "Material Contracts.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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."
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(aSchedule 3.18(a) of the Disclosure Letter contains a an accurate and complete and accurate list, and Sellers have Seller has delivered to Buyer true accurate and complete copies, of:
(i) each Applicable Seller Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies Seller of an amount or value in excess of $25,00050,000;
(ii) each Applicable 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 $25,00050,000;
(iii) each Applicable 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 $25,00050,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Seller Contract affecting in any material respect the ownership of, leasing of, title to, use of, of or any leasehold or other interest in, in any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 50,000 and with terms a term of less than one year);
(v) each licensing agreement or other Applicable Seller Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employeesemployees relating to wages, hours and other conditions of employment;
(viivi) each joint venture, partnership, and other Applicable Seller Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company Seller with any other Person;
(viiivii) each Applicable Seller Contract containing covenants that in any way purport to restrict the Seller's 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 Seller to engage in any line of business or to compete with any Person;
(ixviii) each Applicable Seller Contract providing for payments to or by any Person based on sales, purchases, purchases or profits, other than direct payments for goods;
(xix) each power of attorney of Seller that is currently effective and outstanding;
(xix) each Applicable Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired Company Seller to be responsible for consequential damages;
(xiixi) each Applicable Seller Contract for capital expenditures in excess of $10,00050,000;
(xii) 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 extended by any Acquired Company Seller other than in the Ordinary Course of Business; and
(xiv) each amendment, supplement, 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:Schedule 3.18(b):
(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, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(aSchedule 3.18(a) of the Disclosure Letter 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 against Seller and, to Seller's Knowledge, the parties thereto in accordance with its terms; and
(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.
(dc) Except as set forth in Part 3.17(d) of the Disclosure Letter:Schedule 3.18(c):
(i) each Acquired Company is, and at all times since January 1, 2000, has been, Seller is in full material compliance with all applicable terms and requirements of each Seller Contract under which such Acquired Company has or had any obligation or liability or is being assumed by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was boundBuyer;
(ii) each other Person that has or had any obligation or liability under any Seller Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, is being assigned to Buyer is in full material compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, with or result in a violation or breach Breach of, or give any Acquired Company Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate, terminate or modify, any Applicable Contract; andSeller Contract that is being assigned to or assumed by Buyer, except where such event would not have a Seller Material Adverse Effect;
(iv) no Acquired Company event has occurred or circumstance exists under or by virtue of any Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any of the Assets; and
(v) to Seller's Knowledge, Seller has not given to or received from any other Person, at any time since December 31January 2, 20052002, any notice or other written or oral communication (whether oral or written) regarding any actual, alleged, possible, possible or potential violation or breach Breach of, or default under, any ContractContract which is being assigned to or assumed by Buyer.
(ed) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate renegotiate, any material amounts paid or payable to any Acquired Company Seller under current or completed Contracts with any Person and, having the contractual or statutory right to the Knowledge of Sellers demand or require such renegotiation and the Company, , no such Person has made written demand for such renegotiation.
(fe) The Contracts Each Contract relating to the sale, design, manufacture, manufacture or provision of products or services by the Acquired Companies have Seller has been entered into in the Ordinary Course of Business of Seller and have has been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal RequirementRequirement that would have a Seller Material Adverse Effect.
Appears in 1 contract
Contracts; No Defaults. (a) To the extent such documents are located in the Cincinnati metropolitan area, Part 3.17(a) of the Disclosure Letter Schedule contains a complete and accurate list, list and Sellers have delivered CIC has made available to Buyer PAS true and complete copies, ofcorrect copies of :
(i) except for CDA/CMA agreements with customers, each Applicable Contract that involves performance of services or delivery of goods goods, materials or materials money by one or more Acquired Companies of an amount or value in excess of $25,000100,000 on an annual basis;
(ii) except for CDA/CMA agreements with customers, each Applicable Contract that involves performance of services or delivery of goods goods, materials or materials money to one or more Acquired Companies of an amount or value in excess of $25,000100,000 on an annual basis;
(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 $25,000100,000 on an annual basis;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, : any real or personal property that involves expenditures or receipts of one or more Acquired Companies in excess of $100,000 or (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments for Applicable Contracts relating to the placement of less than $10,000 and with terms of less than one year)vending machines) real property;
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including including, except for the standard confidentiality agreement(s) entered into with certain employees, agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement currently in effect 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 other Applicable Contract (however named) ), currently in effect, involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person;
(viii) 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;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) 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 $10,000100,000;
(xiiix) each written warranty, guaranty, and guaranty or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of BusinessCompany; and
(xivxi) 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Each Applicable Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter Schedule is in full force and effect and is valid and enforceable in accordance with its terms.
(dc) Except as set forth in Part 3.17(d3.17(c) of the Disclosure LetterSchedule:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, is in full compliance with all applicable terms and requirements of each Applicable Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Applicable Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, is in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may would or is reasonably likely to contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any existing Applicable Contract.
(ed) There Except as set forth in Part 3.17(d) of the Disclosure Schedule, there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Applicable Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(fe) The Applicable Contracts relating to the sale, design, manufacturebottling, distribution or provision of products or services by the Acquired Companies 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 Personact, 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 3.17(a) of the Disclosure Letter Exhibit 6.10 contains a complete and accurate listlist of, and Sellers have Seller has delivered to Buyer true and complete copies, copies of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies PTI of an amount or value in excess of $25,000100,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies PTI of an amount or value in excess of $25,00050,000;
(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 PTI in excess of $25,00050,000;
(iv) each lease, rental or occupancy lease agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 25,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property AssetsProperty;
(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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company PTI with any other Person;
(vii) each Contract between or including PTI and an Affiliate;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company PTI or any Affiliate of an Acquired Company PTI or limit the freedom of any Acquired Company PTI or any Affiliate of an Acquired Company PTI to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or power of attorney granted by any Person based on sales, purchases, or profits, other than direct payments for goodsPTI that is currently effective;
(x) 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 $10,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company PTI other than in the Ordinary Course of Business; and;
(xivxi) each amendment, supplement, and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(a;
(xii) the Contract between PTI and TBNG regarding sharing exploration and drilling expenses and sales proceeds; and
(xiii) the Contract with Inchbrook regarding Registered Capital Transfer of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are locatedPTI.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person each Affiliate of either Seller) has or may acquire does not have any rights under, and neither Seller has under or may become subject to any obligation or liability underunder and does not have the right to require or will not become subject to, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; andPTI;
(iic) [to To the Knowledge knowledge of Sellers and the Acquired Companies,] Seller or PTI, no officer, director, agent, employee, consultant, or contractor of any Acquired Company PTI is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (Ai) engage in or continue any conduct, activity, or practice relating to the business of any Acquired CompanyPTI, or (Bii) assign to any Acquired Company PTI or to any other Person any rights to any invention, improvement, or discovery.;
(cd) Except as set forth in Part 3.17(c) of the Disclosure Letter, With respect to each Contract identified or required to be identified in Part 3.17(aExhibit 6.10 (i) of the Disclosure Letter Contract is legal, valid, binding, enforceable and in full force and effect; (ii) the Contract will continue to be legal, valid, binding, enforceable and in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) on identical terms following the consummation of the Disclosure Letter:
transactions contemplated hereby; (iiii) each Acquired Company isno party is in breach or default, and at all times since January 1no event has occurred which with notice or lapse of time would constitute a breach or default, 2000or permit termination, modification or acceleration, under the Contract; and (iv) no party has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had repudiated any obligation or liability or by which such Acquired Company or any provision of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iiie) no event PTI has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has not given to or received from any other Person, at any time since December 31January 1, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.; and
(ef) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company PTI under current or completed Contracts with any Person and, to the Knowledge knowledge of Sellers and the Company, PTI, no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(aSection 6.12(a) of the Disclosure Letter Schedules contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copieslisting of all Contracts (other than purchase orders) described in clauses (i) through (xiv) of this Section 6.12(a) to which, of:as of the date of this Agreement, Protected or any of Protected Subsidiary is a party (together with all material amendments, waivers or other changes thereto) other than Protected Benefit Plans (collectively, the “Protected Material Contracts”). True, correct and complete copies of the Protected Material Contracts have been delivered to or made available to Trebia and S1 Holdco.
(i) each Applicable Each Contract that involves performance Protected reasonably anticipates will involve aggregate payments or consideration furnished by or to Protected or by or to any Protected Subsidiary of services more than $1,000,000 in the calendar year ended December 31, 2021 or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,000any subsequent calendar year;
(ii) Each agreement related to Borrowed Money Debt (including 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 $25,000Protected Financing Agreement);
(iii) each Applicable Each Contract that was not entered into is a definitive purchase and sale or similar agreement for the acquisition of any Person or any business unit thereof or the disposition of any material assets of Protected or any Protected Subsidiary since December 31, 2017, in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies each case, involving payments in excess of $25,0001,000,000;
(iv) each Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, agreement and each other Applicable Contract affecting with outstanding obligations that (x) provides for the ownership of, leasing of, title to, use of, or any leasehold or other interest in, in any real or personal property and (except personal property leases and installment and conditional sales agreements having a value per item or y) involves aggregate payments in excess of less $1,000,000 in any calendar year, other than $10,000 sales or purchase agreements in the ordinary course of business consistent with past practices and with terms sales of less than one year)obsolete equipment;
(v) each licensing Each joint venture Contract, partnership agreement, limited liability company agreement or similar Contract (other Applicable Contract with respect than Contracts between Protected Subsidiaries) that is material to patentsthe business of Protected and the Protected Subsidiaries, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assetstaken as a whole;
(vi) each collective bargaining agreement and other Applicable Each Contract to or with any labor union or other employee representative requiring capital expenditures after the date of a group this Agreement in an amount in excess of employees$1,000,000 in the aggregate;
(vii) each joint venture, partnership, and other Applicable Each Contract (however named) involving a sharing of profits, losses, costs, expressly prohibiting or liabilities by any Acquired Company with any other Person;
(viii) each Applicable Contract containing covenants that restricting in any way purport to restrict material respect the business activity ability of any Acquired Company Protected or any Affiliate of an Acquired Company or limit the freedom of any Acquired Company or any Affiliate of an Acquired Company Protected Subsidiaries to engage in any line of business business, to sell or distribute any products, to operate in any geographical area or to compete with any Person;
(viii) Each material Contract under which Protected or any Protected Subsidiary (A) is granted any license, sublicense or covenant not to s▇▇ or assert under or with respect to any third party’s Intellectual Property or (B) grants to any third party any license, sublicense or covenant not to s▇▇ or assert under or with respect to any Protected Owned Intellectual Property, excluding, in the case of (A), (I) licenses granted to Protected or the Protected Subsidiaries for commercially available “off-the-shelf” software with annual aggregate fees of less than $1,000,000 and (II) ancillary visual or audio media content acquisition click-wrap or shrink wrap agreement(s) entered into in the ordinary course of business, and in the case of (B), (I) non-exclusive licenses granted to customers or resellers in the ordinary course of business and (II) non-exclusive licenses granted to vendors by Protected or any Protected Subsidiaries which license solely permits the vendor to provide services to Protected and/or any Protected Subsidiary;
(ix) each Applicable Each employee collective bargaining Contract providing for payments to or by other Contract with any Person based on saleslabor union, purchasesworks council, or profits, other than direct payments for goodslabor organization or association;
(x) each power Each sales commission or brokerage Contract that involves annual payments in excess of attorney that $1,000,000 or is currently effective and outstandingnot cancellable on 30 calendar days’ notice without payment or penalty;
(xi) each Applicable Contract entered into Each mortgage, indenture, note, installment obligation or other instrument, agreement or arrangement for or relating to any Indebtedness or borrowing of money by or from Protected or any Protected Subsidiary in excess of $1,000,000 (other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired Company Contracts disclosed pursuant to be responsible for consequential damagesSection 6.12(a)(ii));
(xii) each Applicable Any Contract for capital expenditures in excess of $10,000that is a currency or interest hedging arrangement;
(xiii) each written warrantyAny Contract under which Protected or any Protected Subsidiary has agreed to purchase or sell goods or services from a vendor, guaranty, and supplier or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of Businessperson on a preferred supplier or “most favored supplier” basis; and
(xiv) each amendment, supplement, and modification Any commitment to enter into any agreement of a type described in clauses (whether oral or writteni) in respect of any of the foregoing. Part 3.17(athrough (xiii) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are locatedthis Section 6.12(a).
(b) Except for any Contract that has terminated or will terminate upon the expiration of the stated term thereof prior to the Closing Date and except as set forth would not, individually or in Part 3.17(bthe aggregate, reasonably be expected to be material to Protected and the Protected Subsidiaries, taken as a whole, as of the date of this Agreement, all of the Contracts listed or required to be listed on Section 6.12(a) of the Disclosure Letter:
Schedules pursuant to Section 6.12(a) are (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, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) represent the legal, valid and binding obligations of Protected or any Protected Subsidiary party thereto and, to the knowledge of Protected, represent the legal, valid and binding obligations of the other parties thereto, in each case, subject to the Enforceability Exceptions. As of the date of this Agreement, except as would not reasonably be expected to be, individually or in the aggregate, material to Protected and the Protected Subsidiaries, taken as whole, (w) none of Protected, any Protected Subsidiary or, to the knowledge of Protected, any other Person that has party thereto is or had any obligation to the knowledge of Protected, is alleged to be in material breach of or liability material default under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
, (iiix) neither Protected nor any Protected Subsidiary has received any written claim or notice of material breach of or material default under any such Contract, (y) to the knowledge of Protected, no event has occurred which individually or circumstance exists that together with other events, would reasonably be expected to result in a material breach of or a material default under any such Contract (in each case, with or without notice or lapse of timetime or both) may contraveneand (z) no party to any such Contract that is a customer of or supplier to Protected or any Protected Subsidiary has, conflict within the past 12 months, canceled or terminated its business with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person andor, to the Knowledge knowledge of Sellers and the CompanyProtected, threatened in writing to cancel or terminate its business with, no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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, Protected or any consideration having been paid or promised, that is or would be in violation of any Legal RequirementProtected Subsidiary.
Appears in 1 contract
Sources: Business Combination Agreement (Trebia Acquisition Corp.)
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have Company has delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by to one or more Acquired Companies Company of an amount or value in excess of $25,000;
(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 $25,000;
(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 Company in excess of $25,0005,000;
(iviii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year)property;
(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, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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;
(viiv) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired the Company with any other Person;
(viiivi) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any Affiliate of an Acquired the Company or limit the freedom of any Acquired the Company or any Affiliate of an Acquired the Company to engage in any line of business or to compete with any Person;
(ixvii) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(xviii) each power of attorney that is currently effective and outstanding;
(xiix) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired the Company to be responsible for consequential damages;
(xiix) each Applicable Contract for capital expenditures in excess of $10,0005,000;
(xiiixi) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired the Company other than in the Ordinary Course of Business; and
(xivxii) 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 Acquired Companies Company under the Contracts, and the Acquired Companies' 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 To the Knowledge of Company, no Shareholder (and no Related Person of either Sellerany Shareholder) has or may acquire any rights under, and neither Seller 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
(ii) [to the Knowledge of Sellers and the Acquired Companies,] Company, no officer, director, agent, employee, consultant, or contractor of any Acquired 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 any Acquired the Company, or (B) assign to any Acquired the Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired the Company is, and at all times since January 1December 31, 2000, 1999 has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired the Company has or had any obligation or liability or by which such Acquired the Company or any of the assets owned or used by such Acquired the Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired the Company has or had any rights is, and at all times since January 1December 31, 2000 1999 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired The Company has not given to or received from any other Person, at any time since December 31, 20051999, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There Except as described in Part 3.17(e) of the Disclosure Letter, there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired the Company under current or completed Contracts with any Person and, to the Knowledge of Sellers Company and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies have Company has 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have Company has delivered or made available to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies the Company of an amount or value in excess of $25,00015,000;
(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 $25,000;
(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 $25,00015,000;
(iviii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 15,000 and with terms of less 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, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(viv) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(viivi) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired the Company with any other Person;
(viiivii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any Affiliate Seller of an Acquired the Company or limit the freedom of any Acquired the Company or any Affiliate Seller of an Acquired the Company to engage in any line of business or to compete with any Person;
(ixviii) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goodsgoods and sales commission arrangements for employees;
(xix) each power of attorney granted by the Company that is currently effective and outstanding;
(xix) each Applicable Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired the Company to be responsible for consequential damages;
(xiixi) each Applicable Contract for future capital expenditures in excess of $10,00015,000;
(xiiixii) each currently effective written warranty, guaranty, indemnity, and or other similar undertaking with respect to contractual performance extended by any Acquired the Company other than in the Ordinary Course of Business;
(xiii) each Contract for indebtedness of the Company involving future aggregate payments of more than $10,000; 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller Sellers (and no Related Person of either Sellerthe Sellers) has do not have or may acquire any rights under, and neither Seller has Sellers do not have or may become subject to 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
(ii) [to no officer or director of the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, officer or contractor director to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired the Company, or (B) assign to any Acquired the Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its material terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired the Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired the Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.had
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a) 3.17 of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies the Company of an amount or value in excess of $25,00015,000;
(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 $25,00015,000;
(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 $25,00015,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 20,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired the Company with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any Affiliate of an Acquired the Company or limit the freedom of any Acquired the Company or any Affiliate of an Acquired the Company to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) each power of attorney of 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 any Acquired the Company to be responsible for consequential damages;
(xii) each Applicable Contract for capital expenditures expenditures, by the Company in excess of $10,00015,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired the Company other than in the Ordinary Course of Business; and
(xiv) each written 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller none of Sellers (and no Related Person of either SellerSellers) has or may acquire any rights under, and neither Seller nor 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
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, or to the Knowledge of Sellers, any agent, critical employee, consultant, or contractor Representative of any Acquired the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, critical employee, consultant, or contractor Representative to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired the Company, or (B) assign to any Acquired the Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) 3.17 of the Disclosure Letter is in full force and effect and is valid and substantially enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired the Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable material terms and requirements of each Contract under which such Acquired the Company has or had any material obligation or liability or by which such Acquired the Company or any of the assets owned or used by such Acquired the Company is or was bound;
(ii) to the Knowledge of Sellers, each other Person that has or had any obligation or liability under any Contract under which an Acquired the Company has or had any rights is, and at all times since January 1, 2000 has been, is in full compliance with all applicable material terms and requirements of such Contract;
(iii) to the Knowledge of Sellers, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a material violation or breach of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired the Company has not given to or received from any other Person, at any time since December 31, 20051995 any written notice or, any notice or to the Knowledge of Sellers, other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired the Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies Company have been entered into in the Ordinary Course of Business and and, to the Knowledge of Sellers, have been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in material violation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(aExcept for oral supply commitments made in the Ordinary Course of Business, Section 3.10(a) of the Seller’s Disclosure Letter contains a complete and accurate list, and Sellers have the Seller has delivered to Buyer true and complete copies, of:of the following Applicable Contracts (each a “Material Contract”):
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one the Company or more Acquired Companies any Company Subsidiary of an amount or value in excess of $25,00035,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one the Company or more Acquired Companies any Company Subsidiary of an amount or value in excess of $25,00050,000;
(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 the Company Subsidiary in excess of $25,00050,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale sales agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year5,000);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual propertyIntellectual Property Assets, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company Seller with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any Affiliate of an Acquired Company Subsidiary or limit the freedom of any Acquired the Company or any Affiliate of an Acquired Company Subsidiary to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) 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 or any Acquired Company Subsidiary to be responsible for consequential damages;
(xii) each Applicable Contract for capital expenditures in excess of $10,00050,000;
(xiii) each employment Contract; and
(xiv) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by or extended by Seller or third parties on behalf of Company or any Acquired Company Subsidiary in the absence of which the business of the Company and the Company Subsidiary would suffer a Material Adverse Effect 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a4.12(a) of the W▇▇▇▇▇▇▇▇▇ Disclosure Letter contains a complete and accurate list, and Sellers have W▇▇▇▇▇▇▇▇▇ has delivered to Buyer Concierge true and complete copies, of:of the following Contracts to which any of the Acquired Companies is a party or by which the assets of any of the Acquired Companies are bound (other than Fund Material Contracts, which are addressed in Section 4.9) (collectively, the “Material Contracts”):
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,000250,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials for to one or more Acquired Companies of an amount or value in excess of $25,000250,000;
(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 $25,000250,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 250,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract Contract, in each case to the extent material to the Acquired Companies, taken as a whole, with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property AssetsProperty;
(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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any of the Acquired Company Companies with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any of the Acquired Company or any Affiliate of an Acquired Company Companies or limit the freedom of any of the Acquired Company or any Affiliate of an Acquired Company Companies to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) 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 $10,000250,000;
(xiiix) each written warrantyContract that provides for the indemnification by any of the Acquired Companies of any Person or the assumption of any Tax, guaranty, and environmental or other similar undertaking liability of any Person;
(xi) each Contract with respect any Governmental Body to contractual performance extended by which any of the Acquired Company other than Companies is a party;
(xii) each Contract that limits or purports to limit the ability of any of the Acquired Companies to compete in the Ordinary Course any line of Businessbusiness or with any Person or in any geographic area or during any period of time; and
(xivxiii) 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b4.12(b) of the W▇▇▇▇▇▇▇▇▇ Disclosure Letter:
(i) neither , no Seller (and no or Related Person of either any Seller) has or may acquire any rights under, and neither no Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discoveryMaterial Contract.
(c) Except as set forth in Part 3.17(c4.12(c) of the W▇▇▇▇▇▇▇▇▇ Disclosure Letter, each Material Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms, except as may be limited by the Bankruptcy and Equity Exception. None of the Acquired Companies is in breach of or default under, or has provided or received any notice of any intention to terminate any Material Contract.
(d) Except as set forth in Part 3.17(d4.12(d) of the W▇▇▇▇▇▇▇▇▇ Disclosure Letter:
(i) each of the Acquired Company Companies is, and at all times since January 1, 2000, 2015 has been, in full compliance in all material respects with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was boundMaterial Contract;
(ii) to W▇▇▇▇▇▇▇▇▇’▇ Knowledge, each other Person that has or had is a party to any obligation or liability under any Material Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 2015 has been, in full compliance in all material respects with all applicable terms and requirements of such Material Contract;; and
(iii) to W▇▇▇▇▇▇▇▇▇’▇ Knowledge, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any of the Acquired Company Companies or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Material Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Sources: Stock Purchase Agreement (Concierge Technologies Inc)
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) excluding purchase orders issued in the Ordinary Course each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies the Company of an amount or value in excess of $25,0005,000;
(ii) excluding customer orders received in the Ordinary Course 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 $25,0005,000;
(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 $25,0005,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 5,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired the Company with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any Affiliate of an Acquired the Company or limit the freedom of any Acquired the Company or any Affiliate of an Acquired the Company to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) 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 the Company to be responsible for consequential damages;
(xii) each Applicable Contract for capital expenditures in excess of $10,0005,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance 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 Acquired Companies Company under the Contracts, and the Acquired Companies' 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 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
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired 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 any Acquired the Company, or (B) assign to any Acquired the Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired the Company is, and at all times since January 1December, 2000, 1993 has been, in full material compliance with all material applicable terms and requirements of each Contract under which such Acquired the Company has or had any obligation or liability or by which such Acquired the Company or any of the assets owned or used by such Acquired the Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired the Company has or had any rights is, and at all times since January 1December 31, 2000 1993, has been, in full material compliance with all material applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired the Company has not given to or received from any other Person, at any time since December 31, 20051993, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired the Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies have Company has 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.
Appears in 1 contract
Sources: Merger Agreement (Compscripts Inc)
Contracts; No Defaults. (a) Part 3.17(aSection 3.12(a) of the Sellers' Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, oflist of each of the following Contracts which shall be deemed Material Contracts for purposes of this Agreement:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired the Companies of and their Subsidiaries in an amount or value in excess of $25,000;250,000 per year.
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired the Companies of and their Subsidiaries in an amount or value in excess of $25,000;250,000 per year.
(iii) each Applicable Contract that was not entered into in relating to the Ordinary Course borrowing of Business money other than institutional note placement agreement and that involves expenditures or receipts credit agreement of one or more Acquired the Companies in excess and their Subsidiaries and other agreements with the holders of $25,000such indebtedness relating thereto;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, sales agreement and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per requiring expenditures of $25,000 or less for any single item in any year or aggregate payments of less than $10,000 50,000 over the term thereof, and with terms of less than one yearthree (3) years);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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;
(viivi) each material joint venture, partnership, partnership and other Applicable Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company the Companies and their Subsidiaries with any other Person;
(viiivii) each Applicable Contract containing covenants that in any way purport to restrict in any material respect the business activity of any Acquired Company the Companies or their Subsidiaries (or any Affiliate of an Acquired Company thereof) or limit the freedom of any Acquired Company the Companies and their Subsidiaries (or any Affiliate of an Acquired Company thereof) to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) 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 $10,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of Business; and
(xivviii) 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are locatedother material Applicable Contract.
(b) Except as set forth in Part 3.17(bSection 3.12(b) of the Sellers' Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure LetterPrincipal Sellers, each Material Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms, except as may be limited by bankruptcy, moratorium and insolvency laws and other laws affecting the rights of creditors generally and except as may be limited by the general principles of equity.
(dc) Except as set forth in Part 3.17(dSection 3.12(c) of the Sellers' Disclosure Letter:
(i) each Acquired Company is, of the Companies and at Subsidiaries is in material compliance in all times since January 1, 2000, has been, in full compliance material respects with all applicable terms and requirements of each Material Contract under to 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 it is or was bounda party;
(ii) to the Knowledge of the Principal Sellers, each other Person that has or had which is a party to any obligation or liability under any Contract under which an Acquired Company has or had any rights isMaterial Contract, and at all times since January 1, 2000 has been, is in full material compliance with all applicable terms and requirements of such Material Contract;
(iii) no event has occurred and is continuing or circumstance exists on the part of the Companies and their Subsidiaries or, to the Knowledge of the Principal Sellers, on the part of any other party to a Material Contract, that (with or without notice or lapse of time) may would reasonably be expected to contravene, conflict with, with or result in a material violation or breach of, or give any Acquired Company of the Companies or their Subsidiaries or any other Person the right to declare a default or exercise any material remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, terminate or modify, any Applicable Material Contract; and
(iv) no Acquired Company to the Knowledge of the Principal Sellers, none of the Companies or their Subsidiaries has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral orally with specificity or written) regarding which a reasonable person would understand as asserting any actual, alleged, possible, actual or potential alleged violation or breach of, or default under, any Material Contract.
(ed) There To the Knowledge of the Principal Sellers, the Companies and their Subsidiaries are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate not currently renegotiating any material amounts paid or payable to any Acquired Company the Companies or their Subsidiaries under current or completed Material Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiationPerson.
(fe) The copies of the Material Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies which have been entered into delivered to Buyer are, except as redacted, true and correct copies of such Material Contracts as presently 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 Requirementeffect.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a) 3.14 of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer Biomune true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies for Rockwood of an amount or value in excess of $25,000100,000;
(ii) each Applicable Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies Rockwood of an amount or value in excess of $25,000100,000;
(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 Rockwood in excess of $25,000100,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 100,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company Rockwood with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company Rockwood or any Affiliate of an Acquired Company Rockwood or limit the freedom of any Acquired Company Rockwood or any Affiliate of an Acquired Company Rockwood to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) each power of attorney of Rockwood 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 Rockwood to be responsible for consequential damages;
(xii) each Applicable Contract for capital expenditures expenditures, by Rockwood in excess of $10,000100,000;
(xiii) each written warranty, guaranty, and or /or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of BusinessRockwood; and
(xiv) each written 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, or to the Knowledge of Sellers, any agent, critical employee, consultant, or contractor Representative of any Acquired Company Rockwood is bound by any Contract that purports to limit the ability of such officer, director, agent, critical employee, consultant, or contractor Representative to (A) engage in or continue any conduct, activity, or practice relating to the business Business of any Acquired CompanyRockwood, or (B) assign to any Acquired Company Rockwood 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, to the Knowledge of Sellers, each Applicable Contract identified or required to be identified in Part 3.17(a) 3.14 of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company Rockwood is, and at all times since January 1September 30, 2000, 1996 has been, in full compliance with all applicable material terms and requirements of each Applicable Contract under which such Acquired Company Rockwood has or has had any material obligation or liability or by which such Acquired Company Rockwood or any of the assets owned or used by such Acquired Company is or was Rockwood are bound;
(ii) to the Knowledge of Sellers, each other Person that has or had any obligation or liability under any Applicable Contract under which an Acquired Company Rockwood has or has had any rights is, and at all times since January 1, 2000 has been, is in full compliance with all applicable material terms and requirements of such Applicable Contract;
(iii) to the Knowledge of Sellers, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a material violation or breach of, or give any Acquired Company Rockwood or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company Rockwood has not given to or received from any other Person, at any time since December 31, 20051996 any written notice or, any notice or to the Knowledge of Sellers, other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Applicable Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material Material amounts paid or payable to any Acquired Company Rockwood under current or completed Applicable Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Applicable Contracts relating to the sale, design, manufacture, sale or provision of products or services by the Acquired Companies Rockwood have been entered into in the Ordinary Course of Business and and, to the Knowledge of Sellers, have been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in material violation of any Legal Requirement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Biomune Systems Inc)
Contracts; No Defaults. (a) Part 3.17(aSchedule 5.17(a) of the Disclosure Letter contains a complete list of Contracts of Sellers and accurate listIP Sellers used by the Businesses in the following categories, and Sellers have delivered to Buyer true and complete copies, ofidentifies with an asterisk each such Contract which is an Assumed Contract:
(i) each Applicable Contract all Contracts with Transferred Employees that involves performance have a remaining unexpired term of services or delivery at least one year and require payment of goods or materials by one or more Acquired Companies of an amount or value in excess of than $25,000100,000 annually;
(ii) each Applicable Contract that involves performance of services or delivery other than for the provision of goods or materials services in the Ordinary Course of Business pursuant to one one-time purchase orders, all Contracts that require payment by Sellers or IP Sellers of, more Acquired Companies of an amount or value in excess of than $25,000500,000 annually, which are not cancelable on thirty (30) calendar days notice;
(iii) each Applicable any Contract that was contains a non-compete covenant or similar provision that restricts Buyer in its conduct of the Businesses following the Closing;
(iv) all Contracts that require payment of commission or similar payments in excess of $150,000 annually;
(v) all evidences of Indebtedness which either (i) Sellers do not entered into intend to remain outstanding following the Closing or (ii) which Buyer may be required to arrange for substitution of following the Closing;
(vi) all evidences of Indebtedness pursuant to which any Seller has provided credit (excluding credit provided by a Seller in the Ordinary Course of Business) to purchasers of its products;
(vii) any lease or sublease under which any Seller is a lessee of or holds or operates any property, real or personal, owned by any other Person where the lease or sublease provides for annual payments in excess of $150,000;
(viii) any Contract under which any Seller is lessor of or permits any third party to hold or operate the Purchased Assets;
(ix) all Contracts that are settlement, conciliation or similar agreements pursuant to which any of the Businesses will be required, as of or after the date hereof, to pay consideration in excess of $150,000;
(x) all bonus, or deferred compensation plans or similar Contracts with any Transferred Employee for payments in excess of $25,000 or any severance Contract with any Transferred Employee;
(xi) all Contracts with any Transferred Employee providing for the payment of any cash or other compensation or benefits upon the sale of the Businesses;
(xii) all material licenses to which any Seller or IP Seller is a party with respect to any Purchased IP Assets (other than commercially available off-the-shelf software licenses solely for internal use of Sellers or IP Sellers) and all other material Contracts affecting the Sellers' or IP Sellers' ability to use or disclose the Purchased IP Assets;
(xiii) all nondisclosure or confidentiality Contracts, other than with respect to employees of Sellers;
(xiv) all contracts relating to the marketing, sale, advertising or promotion of its products not terminable on sixty (60) days notice or requiring annual payments in excess of $100,000;
(xv) except for Contracts which provide a warranty and indemnity which are not materially inconsistent with the standard warranty and indemnity and other terms and conditions of purchase, sale, manufacture, and distribution provided to the Businesses' customers and suppliers in the Ordinary Course of Business and that involves expenditures or receipts of one or more Acquired Companies which could not result in losses to Buyer in excess of $25,000240,000, all Contracts providing a warranty or similar guarantee with respect to products purchased, sold, manufactured, or distributed or Contracts providing for indemnification or similar protection under which such Seller is obligated to indemnify against product warranty or infringement or similar claims;
(ivxvi) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person;
(viii) 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;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) each power the provision of attorney that is currently effective and outstanding;
(xi) each Applicable Contract entered into other than goods or services in the Ordinary Course of Business pursuant to one-time purchase orders, any material Contracts with Material Customers; The Parties agree that contains or provides for an express undertaking the disclosure provided by any Acquired Company to this Section 5.17(a)(xvii) will not be responsible for consequential damages;at the signing but instead will be provided within twenty-one (21) days of the date hereof.
(xiixvii) each Applicable Contract for capital expenditures in excess of $10,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than for the provision of goods or services in the Ordinary Course of BusinessBusiness pursuant to one time purchase orders, all Contracts between Sellers and suppliers of raw materials, utilities or logistic services relating to the operations of the Business pursuant to which Sellers reasonably expect payment thereunder to exceed $500,000 in calendar year 2006, which are not cancelable on thirty (30) calendar days notice;
(xviii) any powers of attorney executed by or on behalf of any Seller; and
(xivxix) each amendment, supplement, and modification (whether oral or written) in respect any other Contracts the absence 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are locatedwhich would have a Material Adverse Effect.
(b) Except as set forth Each Assumed Contract required to be disclosed in Part 3.17(b) of the Disclosure Letter:
Schedule 5.17(a): (i) neither Seller (is a valid and no Related Person of either Seller) has or may acquire any rights under, binding and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any enforceable agreement of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers that is a party thereto and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect (and is valid and enforceable in accordance with its terms.
(d) Except will continue as set forth in Part 3.17(d) such immediately following the consummation of the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
transactions contemplated hereby); (ii) each other Person that has no Seller is in breach or had default in any obligation or liability material respect under any Assumed Contract under which an Acquired Company has or had any rights isrequired to be disclosed in Schedule 5.17(a), and at all times since January 1to Sellers' Knowledge, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without which, upon giving of notice or lapse of time) may contravenetime or both, conflict with, or result in would constitute a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default underhas occurred. No Seller has received any written notice of cancellation or termination or any written notice of default under any Assumed Contract required to be disclosed in Schedule 5.17(a). Sellers have furnished to Buyer true and correct copies of each of the Assumed Contracts set forth in Schedule 5.17(a), together with all amendments thereto. Except as specifically disclosed in Schedule 5.17(a), (i) Sellers and, and to Sellers' Knowledge, the other party thereto have performed in all material respects all obligations required to be performed by such Person under the Assumed Contracts required to be disclosed in Schedule 5.17(a) (ii) to Sellers' Knowledge, there is no breach by any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable party to any Acquired Company under current Assumed Contract required to be listed on Schedule 5.17(a), and (iii) Sellers have not assigned, delegated or completed Contracts with otherwise transferred to any Person andof its rights, title or interest under any Assumed Contract required to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiationbe disclosed in Schedule 5.17(a).
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter 2.15.1 Schedule 2.15.1 contains a complete and accurate list, and Sellers have AirPatrol has delivered or made available to Buyer Acquiror true and complete copies, of:of the following Contracts to which AirPatrol or its Subsidiary is a party or beneficiary (“Material Contracts”):
(ia) each Applicable Contract that involves performance of services or delivery of goods or materials by one AirPatrol or more Acquired Companies its Subsidiary of an aggregate amount or value in excess of $25,00050,000;
(iib) 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 $25,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures or receipts of one AirPatrol or more Acquired Companies its Subsidiary in excess of $25,00050,000;
(ivc) 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 tangible property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(vd) each licensing agreement or other Applicable Contract pursuant to which (i) AirPatrol or its Subsidiary is granted a license or other right to use the Intellectual Property of a third Person (other than licenses for Shrink Wrap Code) for use in the business and (B) other than non-disclosure agreements and non-exclusive licenses with respect to patentsAirPatrol Products granted to users in the Ordinary Course of Business, trademarksthe Company has granted, copyrights, licensed or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of provided any of the Company Intellectual Property Assetsto third Persons;
(vie) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(viif) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company AirPatrol or its Subsidiary with any other Person;
(viiig) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company AirPatrol or any Affiliate of an Acquired Company its Subsidiary, or materially limit the freedom of any Acquired Company AirPatrol or any Affiliate of an Acquired Company its Subsidiary to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(xh) each power of attorney that is currently effective and outstanding;
(xii) 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 $10,00050,000;
(xiiij) each written warranty, guaranty, and or and/or other similar undertaking with respect to contractual performance extended by any Acquired Company AirPatrol or its Subsidiary, other than in the Ordinary Course of Business; and
(xivk) each amendment, supplement, and modification (whether oral or written) in writing with 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) 2.15.2 Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights underSchedule 2.15.2, 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 Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] AirPatrol, no officer, director, agent, employee, consultant, or contractor of any Acquired Company AirPatrol is bound by any Contract contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired CompanyAirPatrol or its Subsidiary, or (B) assign to any Acquired Company AirPatrol, its Subsidiary, or to any other Person any rights to any invention, improvement, or discovery.
(c) 2.15.3 Except as set forth in Part 3.17(c) of the Disclosure LetterSchedule 2.15.3, each Material Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter Schedule 2.15.1 is in full force and effect and is valid and enforceable in accordance with its terms.
(d) 2.15.4 Except as set forth in Part 3.17(d) of the Disclosure LetterSchedule 2.15.4:
(ia) each Acquired Company is, AirPatrol and at its Subsidiary are in compliance in all times since January 1, 2000, has been, in full compliance material respects with all applicable terms and requirements of each Material Contract under which such Acquired Company AirPatrol or its Subsidiary has or had any obligation or liability or by which such Acquired Company AirPatrol, its Subsidiary, or any of the assets owned or used by such Acquired Company AirPatrol or its Subsidiary is or was bound;
(iib) To the Knowledge of AirPatrol, each other Person that has or had any obligation or liability under any Material Contract under which an Acquired Company AirPatrol or its Subsidiary has or had any rights is, and at is in compliance in all times since January 1, 2000 has been, in full compliance material respects with all applicable terms and requirements of such Material Contract;
(iiic) To the Knowledge of AirPatrol, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, materially contravene or conflict with, or result in a material violation or breach of, or give any Acquired Company AirPatrol, its Subsidiary, or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Material Contract; and
(ivd) no Acquired Company has AirPatrol and its Subsidiary have not given to or received from any other Person, Person at any time since December 31, 2005, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) 2.15.5 There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company AirPatrol or its Subsidiary under current or completed Material Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) 2.15.6 The Contracts contracts of AirPatrol and its Subsidiary relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies AirPatrol or its Subsidiary have been entered into in the Ordinary Course of Business and have been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in material violation of any Legal RequirementLaw.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(aSection 3.16(a) of the Operating Company/Members Disclosure Letter contains a complete and accurate list, and Sellers the Members have delivered to Buyer Publico true and complete copies, of:
(i) each Applicable Contract that involves performance of services licensing agreement or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,000other contract with respect to software (collectively, the “Software Licenses”);
(ii) each Applicable Contract contract with respect to the providing of consulting services by Operating Company or any of its employees or agents, or by any of the Members (collectively, the “Consulting Contracts”);
(iii) [Reserved];
(iv) each contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies Operating Company of an amount or value in excess of $25,00010,000;
(iiiv) each Applicable Contract contract (other than the Software Licenses and the Consulting Contracts) 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 Operating Company in excess of $25,00010,000;
(ivvi) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract contracts affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(vvii) each licensing agreement or other Applicable Contract contract (other than the Software Licenses) with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property AssetsProperty;
(viviii) each collective bargaining agreement and other Applicable Contract contract to or with any labor union or other employee representative of a group of employees;
(viiix) each joint venture, partnership, and other Applicable Contract contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Operating Company with any other Personperson;
(viiix) each Applicable Contract contract containing covenants that in any way purport to restrict the business activity of any Acquired Operating Company or any Affiliate of an Acquired Company its affiliates or limit the freedom of any Acquired Operating Company or any Affiliate of an Acquired Company its affiliates to engage in any line of business or to compete with any Personperson;
(ixxi) each Applicable Contract contract providing for payments to or by any Person person based on sales, purchases, or profits, other than direct payments for goods;
(xxii) each power of attorney executed by a Member affecting or related to its or his position as a Member that is currently effective and outstanding;
(xixiii) each Applicable Contract contract entered into other than in the Ordinary Course ordinary course of Business business that contains or provides for an express undertaking by any Acquired Operating Company to be responsible for consequential damages;
(xiixiv) each Applicable Contract contract for capital expenditures in excess of $10,000;
(xiiixv) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Operating Company other than in the Ordinary Course ordinary course of Businessbusiness; and
(xivxvi) 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Sources: Agreement and Plan of Exchange (Milk Bottle Cards Inc.)
Contracts; No Defaults. (a) Part 3.17(a3.20(a) of the Disclosure Letter contains a an accurate and complete and accurate list, and Sellers have Seller has delivered to FindWhat and Buyer true accurate and complete copies, of:
(i) each Applicable Seller Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies Seller of an amount or value in excess of $25,0005,000;
(ii) each Applicable 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 $25,0005,000;
(iii) each Applicable 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 $25,0005,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable 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 personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 5,000 and with terms a term of less than one year);
(v) each licensing agreement or other Applicable Seller Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employeesemployees relating to wages, hours and other conditions of employment;
(viivi) each joint venture, partnership, and other Applicable Seller Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company Seller with any other Person;
(viiivii) each Applicable Seller Contract containing covenants that in any way purport to restrict the Seller's 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 Seller to engage in any line of business or to compete with any Person;
(ixviii) each Applicable Seller Contract providing for payments to or by any Person based on sales, purchases, purchases or profits, other than direct payments for goods;
(xix) each power of attorney of Seller that is currently effective and outstanding;
(xix) each Applicable Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired Company Seller to be responsible for consequential damages;
(xiixi) each Applicable Seller Contract for capital expenditures in excess of $10,0005,000;
(xii) 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 extended by any Acquired Company Seller other than in the Ordinary Course of Business; and
(xiv) each amendment, supplement, supplement and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(a3.20(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Companies Seller under the Contracts, Contracts and the Acquired Companies' location of Seller'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 3.20(b), no Related Person of either Seller) Shareholder has or may acquire any rights under, and neither Seller no Shareholder has or may become subject to any obligation or liability under, any Contract that relates to the business of, of Seller or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discoveryAssets.
(c) Except as set forth in Part 3.17(c3.20(c):
(i) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a3.20
(a) of the Disclosure Letter and which is to be assigned to or assumed by Buyer under this Agreement is in full force and effect and is valid and enforceable in accordance with its terms;
(ii) each Contract identified or required to be identified in Part 3.20(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 Knowledge of Seller, no Contract identified or required to be identified in Part 3.20
(a) and which is to be assigned to or assumed by Buyer under this Agreement will upon completion or performance thereof have a material adverse 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 Part 3.17(d) of the Disclosure Letter:3.20(d):
(i) each Acquired Company Seller is, and at all times since January 1December 31, 2000, 2003 has been, in full compliance in all material respects with all applicable terms and requirements of each Seller Contract under which such Acquired Company has or had any obligation or liability or is being assumed by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was boundBuyer;
(ii) each other Person that has or had any obligation or liability under any Seller Contract under which an Acquired Company has or had any rights is being assigned to Buyer is, and at all times since January 1December 31, 2000 2003 has been, in full compliance in all material respects with all applicable terms and requirements of such Contract;
(iii) to Seller's Knowledge, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, with or result in a violation or breach Breach of, or give any Acquired Company Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate, terminate or modify, any Applicable ContractSeller Contract that is being assigned to or assumed by Buyer;
(iv) to Seller's knowledge 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 the creation of any Encumbrance affecting any of the Assets; and
(ivv) no Acquired Company Seller has not given to or received from any other Person, at any time since December 31, 20052003, any 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 ContractContract which is being assigned to or assumed by Buyer.
(e) There are no renegotiations of, attempts to renegotiate, renegotiate or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company Seller under current or completed Contracts with any Person and, having the contractual or statutory right to the Knowledge of Sellers demand or require such renegotiation and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts Each Contract relating to the sale, design, manufacture, manufacture or provision of products or services by the Acquired Companies have Seller has been entered into in the Ordinary Course of Business of Seller and have has been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have Seller has delivered to Buyer or its counsel true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,00050,000;
(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 $25,00050,000;
(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 $25,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales sale agreements having a value per item or aggregate payments of less than $10,000 and 100,000 or with terms of less than one year);
(viv) other than (A) the License Agreement between Oy Uponor AB and Vinidex Tubemakers PTY Limited dated 1991, (B) the Memorandum of Agreement between Corma Inc. and Uponor B.V. dated as of January 1, 1992, (C) License between Uponor BV and Scepter Manufacturing Company Limited, Inc. of ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ dated September 6, 1988, and (D) License between Uponor BV and Camron Inc., ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ dated March 30, 1990, each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(viv) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(viivi) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other PersonPerson (other than another Acquired Company or the Seller);
(viiivii) 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;
(ixviii) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(xix) each power of attorney that is currently effective and outstanding;
(xi) each material 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;
(xiix) each Applicable Contract for capital expenditures in excess of $10,00025,000;
(xiiixi) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of Business; and
(xivxii) each material 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither , Seller (has not acquired and no Related Person of either Seller) has or may shall not acquire any rights under, and neither Seller has or may not and shall 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
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discoveryApplicable Contract.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and and, to the Acquired Companies' Knowledge, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency or similar laws and equitable principles relating to or affecting the rights of creditors generally from time to time in effect.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, is and at all times since January 1, 2000, has been, been in full material compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) to the Acquired Companies' Knowledge, 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, is and at all times since January 1, 2000 has been, been in full material compliance with all applicable terms and requirements of such Contract;
(iii) except for this Agreement and the transactions contemplated hereby, to the Acquired Companies' Knowledge, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or or, to the Acquired Companies' Knowledge, received from any other Person, at Person any time since December 31, 2005, any written notice or other written communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any ContractContract involving obligations to or by any Acquired Company in excess of $25,000.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiationPerson.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part A. Schedule 3.17(a) of the Company Disclosure Letter Schedule contains a complete and accurate listlist (other than Customer License Agreements which are disclosed in Section 3.22.), and Sellers have the Company has delivered to Buyer Merger Sub and Parent true and complete copies, of:
(i) each Applicable Each Contract that involves performance of services or delivery of goods or materials by one the Company or more Acquired Companies the Subsidiary of an amount or value in excess of Twenty-Five Thousand and No/100 Dollars ($25,00025,000.00);
(ii) each Applicable 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 Twenty-Five Thousand and No/100 Dollars ($25,00025,000.00);
(iii) Except for customer Contracts and inventory and equipment purchase orders incurred in the Ordinary Course of Business, each Applicable 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 Twenty- Five Thousand and No/100 Dollars ($25,00025,000.00);
(iv) each Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than Twenty-Five Thousand and No/100 Dollars ($10,000 25,000.00) and with terms of less than one (1) year)) of the Company or the Subsidiary;
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 employeesemployees relating to the Company or the Subsidiary;
(viivi) each Each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired the Company or the Subsidiary with any other Person;
(viiivii) each Applicable Each Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any Affiliate of an Acquired Company the Subsidiary or limit the freedom of any Acquired the Company or any Affiliate of an Acquired Company the Subsidiary to engage in any line of business or to compete with any Person;
(ixviii) each Applicable Each Contract (relating to the Company or the Subsidiary) providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(xix) each Each power of attorney relating to the Company or the Subsidiary that is currently effective and outstanding;
(xix) each Applicable Each Contract entered into other than in relating to the Ordinary Course of Business that contains Company or provides for an express undertaking by any Acquired Company to be responsible for consequential damages;
(xii) each Applicable Contract the Subsidiary for capital expenditures in excess of Twenty-Five Thousand and No/100 Dollars ($10,00025,000.00);
(xiiixi) each Each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired the Company or the Subsidiary other than in the Ordinary Course of Business; and
(xivxii) each 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) B. Except as set forth in Part Schedule 3.17(b) of the Company Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights underSchedule, 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 Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] Company, no officer, director, agent, employee, consultant, or contractor employee of any Acquired the Company or the Subsidiary is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, director or contractor employee to (Ai) engage in or continue any conduct, activity, or practice relating to the business of the Company or any Acquired CompanySubsidiary, as currently conducted or (Bii) assign to any Acquired the Company or to any other Person Subsidiary any rights to any invention, improvement, or discoverydiscovery relating to the business of the Company or any Subsidiary.
(c) C. Except as set forth in Part Schedule 3.17(c) of the Company Disclosure LetterSchedule, each Contract identified or required to be identified in Part Schedule 3.17(a) of the Company Disclosure Letter Schedule is in full force and effect and is valid and enforceable effect, except as to matters or default which in accordance with its termsthe aggregate would not have a Company Material Adverse Effect.
(d) D. Except as set forth in Part Schedule 3.17(d) of the Company Disclosure LetterSchedule:
(i) The Company and each Acquired Company is, and at all times since January 1, 2000, has been, Subsidiary is in full compliance with all applicable material terms and requirements of each Contract under which Company or such Acquired Company Subsidiary has or had any obligation or liability or by which Company or such Acquired Company Subsidiary or any of the assets owned or used by Company or such Acquired Company Subsidiary is or was bound, except where the failure to comply with such terms and requirements would not have a Company Material Adverse Effect;
(ii) To the Knowledge of the Company, each other Person that has or had any obligation or liability under any Contract under which an Acquired the Company has or had any rights is, and at all times since January 1, 2000 has been, is in full compliance with all applicable material terms and requirements of such Contract;
(iii) To the Knowledge of the Company, no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired the Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable material Contract, except for events or circumstances which in the aggregate would not have a Company Material Adverse Effect; and
(iv) no Acquired Neither the Company nor any Subsidiary has given to or received from any other Person, at any time since December March 31, 20051999, any written notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any material Contract.
(e) E. There are no renegotiations of, of or attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to the Company or any Acquired Company Subsidiary under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person Company has made not received any written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Sources: Merger Agreement (Infocure Corp)
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered made available to Buyer Buyers true and complete copies, of:
(i) each Applicable Contract that involves the remaining performance of services or delivery of goods or materials by one or more Acquired Companies the Company of an amount or value in excess of $25,00050,000;
(ii) each Applicable Contract that involves the remaining 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 $25,00050,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves expenditures the remaining expenditure or receipts of one or more Acquired Companies receipt by the Company in excess of $25,00010,000;
(iv) each lease, rental or occupancy agreement, license, license and installment and conditional sale agreement, and other Applicable Contract agreement affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year);
(v) except for the provisions contained in an Applicable Contract providing for the sale of goods or provisions of services by the Company, each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or or, since January 1, 1995, former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired the Company with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any Affiliate of an Acquired the Company or limit the freedom of any Acquired the Company or any Affiliate of an Acquired the Company to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goodsgoods or services;
(x) 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 $10,00025,000;
(xiiixii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired the Company other than in the Ordinary Course of Business; and
(xivxiii) other than for sales and purchase orders, each amendment, supplement, and modification (whether oral written or writtento Sellers' Knowledge, oral) 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 Applicable Contracts, the amount of the remaining commitment of the Acquired Companies Company under the Applicable Contracts, and the Acquired Companies' office where details relating customer purchase order related to the Contracts are locatedsuch Applicable Contracts.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either SellerSeller other than the Company or employees of the Company) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Applicable Contract that relates to the business of, or any of the assets owned or used by, any Acquired the Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] Sellers' Knowledge, no officer, director, agent, employee, consultant, agent or contractor key employee of any Acquired the Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, agent or contractor key employee to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired the Company, or (B) assign to any Acquired the Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms, assuming due authorization, execution and delivery by the other parties thereto, and subject to equitable and other similar exceptions.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired the Company is, and at all times since January 1, 2000, has been, is in full compliance with all applicable terms and requirements of each Applicable Contract under which such Acquired the Company has or had any obligation or liability or by which such Acquired the Company or any of the assets owned or used by such Acquired the Company is or was bound;
(ii) to Sellers' Knowledge, each other Person that has or had any obligation or liability under any Applicable Contract under which an Acquired the Company has or had since April 30, 1995 any rights is, and at all times since January 1April 30, 2000 1995 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may would be reasonably be expected to contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or the other Person or, to Sellers' Knowledge, the Company, the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired the Company has not given to or received from any other Person, at any time since December 31April 30, 20051995, any notice or other communication (whether oral written or writtento the Sellers' Knowledge, oral) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There Except as set forth in Part 3.17(e) of the Disclosure Letter, there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired the Company under current or completed Applicable Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Applicable Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have the Company has delivered to Buyer Nu-Wave Sub true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies of an amount or value in excess of $25,00010,000;
(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 $25,00010,000;
(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 $25,00010,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 5,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company with any other Person;
(viii) 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;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(x) 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 $10,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller The Shareholder (and no Related Person of either Sellerthe Shareholder) has does not have or may not acquire any rights under, and neither Seller has the Shareholder does not have 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, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired Company is, and at all times since January 1December 31, 2000, 1997 has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Dynamic Health Products Inc)
Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter Schedule 2.9 contains a complete and accurate listlisting of all Contracts described in clauses (i)-(xvii) below to which, as of the date hereof, Agencourt or any of its Subsidiaries is a party or by which any of their material assets may be bound (the “Agencourt Material Contracts”). True, correct and Sellers complete copies of contracts referred to in clauses (i)-(xvi) below have been delivered to Buyer true and complete copies, of:or made available to Acquiror or its agents or representatives.
(i) Each Contract which involves performance of services or delivery of goods or materials by Agencourt or any of its Subsidiaries of an amount or value in excess of $25,000 and each Applicable Contract that involves performance of services or delivery of goods or materials by one to Agencourt or more Acquired Companies any of its Subsidiaries of an amount or value in excess of $25,000;
(ii) each Applicable Each note, debenture, other evidence of Indebtedness, guarantee, loan, credit or financing agreement or instrument or other Contract that involves performance of services for money borrowed, including any agreement or delivery of goods commitment for future loans, credit or materials to one or more Acquired Companies of an amount or value financing in excess of $25,000;
(iii) each Applicable Each Contract that was not entered into in the Ordinary Course ordinary course of Business and that involves business involving expenditures or receipts of one Agencourt or more Acquired Companies any of its Subsidiaries in excess of $25,000;
(iv) each Each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or involving aggregate payments in excess of less than $10,000 and with terms of less than one year)25,000;
(v) each Each licensing agreement or other Applicable Contract in excess of $10,000 with respect to patents, trademarks, copyrights, or other intellectual propertyIntellectual Property, including agreements with other Persons and agreements with current or former employees, consultants, consultants or contractors regarding the appropriation acquisition, appropriation, ownership, disposition or the non-disclosure nondisclosure of any of the Intellectual Property AssetsProperty;
(vi) each collective bargaining Each joint venture Contract, partnership agreement, limited liability company agreement and or any other Applicable Contract to or with any labor union or other employee representative of a group of employees;
(vii) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company Agencourt or its Subsidiaries with any other Person;
(vii) Any written warranty or guaranty of the obligations of Persons other than Agencourt or its Subsidiaries or other similar undertaking with respect to contractual performance extended by Agencourt or any of its Subsidiaries other than in the ordinary course of business consistent with past practice;
(viii) each Applicable Any Contract between or among Agencourt and any Affiliate of Agencourt;
(ix) Any 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 or business activities of any Acquired Company Agencourt or any Affiliate of an Acquired Company its Subsidiaries to engage in any line of business or to compete with any PersonPerson and any Contract to which any officer, or to the Knowledge of Agencourt, any director, employee or agent, of Agencourt or any of its Subsidiaries is subject that would prohibit such Person from engaging in or continuing any conduct, activity, or practice relating to the business of Agencourt or its Subsidiaries;
(ixx) each Applicable Contract Any employment Contracts;
(xi) Any Contracts providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goods;
(xxii) each Each power of attorney that is currently effective and outstanding;
(xixiii) each Applicable Any collective bargaining agreements with any labor unions or associations representing employees of Agencourt or any of its Subsidiaries;
(xiv) Any Contract with any Governmental Authority other than customer contracts entered into in the ordinary course of business consistent with past practice;
(xv) Each Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by Agencourt or any Acquired Company of its subsidiaries to be responsible for indirect, or special or consequential damages;
(xiixvi) each Applicable Each Contract for requiring capital expenditures after the date hereof in an amount in excess of $10,000;
(xiii) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance extended by any Acquired Company other than in the Ordinary Course of Business25,000; and
(xivxvii) each Each amendment, supplement, supplement and modification (whether oral or writtenin writing) 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) on Schedule 2.9, all the Agencourt Material Contracts, as of the Disclosure Letter:
date hereof (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, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is are in full force and effect and is (ii) represent the legal, valid and enforceable in accordance with its terms.
(d) binding obligations of Agencourt or any Subsidiary party thereto and, to the Knowledge of Agencourt, represent the legal, valid and binding obligations of the other parties thereto. Except as set forth in Part 3.17(d) on Schedule 2.9, to the Knowledge of the Disclosure Letter:
(i) each Acquired Company isAgencourt, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired Company has no condition or had any obligation circumstances exists or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (which, with or without notice or lapse of time) may time or both, would contravene, conflict with, or result in a violation or breach of, of such Agencourt Material Contract or would give any Acquired Company Agencourt or its Subsidiary or the other Person party to the contract the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, of or to cancel, terminate, or modify, exercise any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contractremedy under such Agencourt Material Contracts.
(ec) There Except as set forth on Schedule 2.9, other than in the ordinary course of business consistent with past practice, there are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to Agencourt or any Acquired Company of its Subsidiaries under current or completed Contracts with any Person and, and to the Knowledge of Sellers and the Company, , Agencourt no such Person has made written a demand for such renegotiation.
(fd) The Contracts relating related to the sale, design, manufacture, delivery of goods or provision the performance of products or services by the Acquired Companies have been were all entered into in the Ordinary Course ordinary course of Business business consistent with past practice 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 Requirementfederal, state, local, foreign or other statute, law, ordinance or other legal requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Part 3.17(aAll Seller Contracts (other than Excluded Assts) are, or prior to Closing will be, held by a Targeted Subsidiary and such subsidiary will have all rights of the Disclosure Letter Seller or any Seller Subsidiary thereunder. Schedule 3.20(a) contains a an accurate and complete and accurate list, and Sellers have Seller has delivered to Buyer true accurate and complete copies, of:
(i) each Applicable Seller Contract that involves performance of services by Seller, relating to the Business, or delivery of goods or materials by one or more Acquired Companies the Targeted Subsidiaries, of an amount or value in excess of Twenty-five Thousand dollars ($25,000);
(ii) each Applicable Seller Contract that involves performance of services or delivery of goods or materials to one Seller or more Acquired Companies the Targeted Subsidiaries of an amount or value in excess of Twenty-five Thousand dollars ($25,000);
(iii) each Applicable Seller Contract that was not entered into in the Ordinary Course of Business of the Business and that involves expenditures or receipts of one or more Acquired Companies Seller in excess of Twenty-five Thousand dollars ($25,000);
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable 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 personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than Twenty-five dollars ($10,000 25,000) and with terms a term of less than one year);
(v) each licensing agreement or other Applicable Seller Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employeesemployees relating to wages, hours and other conditions of employment;
(viivi) each joint venture, partnership, and other Applicable Seller Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company Seller with any other Person, including any broker or administrative fee agreement;
(viiivii) each Applicable Seller Contract containing covenants that in any way purport to restrict the business Business activity of any Acquired Company or any Affiliate of an Acquired Company or limit the freedom of any Acquired Company Seller or any Affiliate of an Acquired Company the Targeted Subsidiaries to engage in any line of business or to compete with any PersonPerson or that would limit the freedom of the Targeted Subsidiaries or Buyer to engage in any line of business or compete with any Person following the Effective Time.;
(ixviii) each Applicable Seller Contract providing for payments to or by any Person based on sales, purchases, purchases or profits, other than direct payments for goods;
(xix) each power of attorney of Seller that relates to the Business or the Targeted Subsidiaries that is currently effective and outstanding;
(xix) each Applicable Seller Contract entered into other than in the Ordinary Course of Business of the Business that contains or provides for an express undertaking by any Acquired Company Seller or the Targeted Subsidiaries to be responsible for consequential damages;
(xiixi) each Applicable Seller Contract for capital expenditures in excess of Twenty-five Thousand dollars ($10,00025,000);
(xii) 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 extended by any Acquired Company the Targeted Subsidiaries or Seller other than in the Ordinary Course of Business of the Business; and
(xiv) each amendment, supplement, supplement and modification (whether oral or written) in respect of any of the foregoing. Part 3.17(aSchedule 3.20(a) of the Disclosure Letter sets forth reasonably complete details concerning such Contracts, including the parties to the Contracts, the amount of the remaining commitment of the Acquired Companies Targeted Subsidiaries or Seller under the Contracts, Contracts and the Acquired Companies' location of Seller’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 Schedule 3.20(b), no Related Person of either SellerSeller (other than a Targeted Subsidiary) has or may acquire any rights under, and neither no Related Person of Seller (other than a Targeted Subsidiary) has or may become subject to any obligation or liability under, any Contract that relates to the business of, Business or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discoveryAssets.
(c) Except as set forth in Part 3.17(cSchedule 3.20(c):
(i) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(aSchedule 3.20(a) of the Disclosure Letter 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 3.20(a) is assignable, to the extent necessary to transfer the rights thereto, by Seller to Buyer or the Targeted Subsidiaries as contemplated by this Agreement or the Contribution Agreement without the Consent of any other Person; and
(iii) to the Knowledge of Seller, no Contract identified or required to be identified in Schedule 3.20(a) will upon completion or performance of the transactions contemplated herein have a Material Adverse Change.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:Schedule 3.20(d):
(i) Seller and each Acquired Company Targeted Subsidiary is, and at all times since January 1December 31, 2000, 2005 has been, in full compliance in all material respects with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was boundSeller Contract;
(ii) each other Person that has or had any obligation or liability Liability under any Contract under which an Acquired Company has or had any rights isSeller Contract, and at all times since January 1December 31, 2000 2005, has been, in full compliance in all material respects with all applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may has, will, or could reasonably be expected to, contravene, conflict with, with or result in a violation or breach Breach of, or give any Acquired Company Seller, the Targeted Subsidiaries or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate, terminate or modify, any Applicable Seller Contract; and;
(iv) no Acquired Company event has occurred or circumstance exists under or by virtue of any Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any of the Assets or the Business; and
(v) neither Seller nor the Targeted Subsidiaries have given to or received from any other Person, at any time since December 31, 2005, any 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 Seller Contract.
(e) There are no renegotiations of, attempts to renegotiate, renegotiate or outstanding rights to renegotiate any material amounts paid or payable to Seller or any Acquired Company Targeted Subsidiary under current or completed Seller Contracts with any Person and, having the contractual or statutory right to the Knowledge of Sellers demand or require such renegotiation and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies have Each Seller Contract has been entered into in the Ordinary Course of Business of the Business and have has been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Proxymed Inc /Ft Lauderdale/)
Contracts; No Defaults. (aSchedule 3.1(m) Part 3.17(a) of the Disclosure Letter contains sets forth a complete and accurate list, and Sellers have Seller has delivered to Buyer(or will deliver to Buyer as promptly as practicable after the execution of this Agreement) or Buyer has had an opportunity to review true and complete copies, of:
(i) each Applicable Contract that involves future performance of services or delivery of goods or materials by one or more Acquired Companies Seller of an amount or value in excess of $25,00010,000;
(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 $25,000;
(iii) each Applicable Contract that was not entered into in the Ordinary Course of Business and that involves future expenditures or receipts of one or more Acquired Companies Seller in excess of $25,00010,000;
(iviii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 and with terms of less than one year)property;
(viv) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual propertyIntellectual Property Assets, including agreements with current or former employees, consultants, consultants or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement Assets and other Applicable Contract the form of Employment Agreement previously delivered to or with any labor union or other employee representative of a group of Buyer that is used for Seller’s current and former employees;
(viiv) each joint venture, partnership, and other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired Company Seller with any other Person;
(viiivi) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company Seller or any Affiliate of an Acquired Company Seller or limit the freedom of any Acquired Company Seller or any Affiliate of an Acquired Company Seller to engage in any line of business or to compete with any Person;
(ixvii) each Applicable Contract providing for payments to or by any Person based on sales, purchases, purchases or profits, other than (i) direct payments for goods, or (ii) any plan for the payment of bonuses to Employees of Seller;
(xviii) 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;
(xiiix) each Applicable Contract for future capital expenditures in excess of $10,00010,000 individually or $50,000 in the aggregate;
(xiiix) each written warranty, guaranty, and or other similar undertaking with respect to contractual performance the Applicable Contracts extended by any Acquired Company Seller other than in the Ordinary Course of Business; and
(xivxi) 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (and no Related Person of either Seller) has or may acquire any rights under, and neither Seller has or may become subject to any obligation or liability under, any Contract that relates to the business of, or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure LetterSchedule 3.1(m), each Contract identified or required to be identified in Part 3.17(aSchedule 3.1(m) of the Disclosure Letter is in full force and effect and effect. Seller is valid and enforceable in accordance not a party to any collective bargaining agreement or any other Contract to or with its terms.
(d) any labor union or other employee representative of a group of employees. Except as set forth in Part 3.17(d) of the Disclosure Letter:
Schedule 3.1(m), (i) each Acquired Company Seller is, and at all times since January 1, 2000, the Baseline Balance Sheet Date has been, in full material compliance with all applicable terms and requirements of each Contract under which such Acquired Company has or had any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
listed on Schedule 3.1(m); (ii) to Seller’s Knowledge, each other Person that has or had any obligation or liability under any Contract under which an Acquired Company Seller has or had any rights is, and at all times since January 1, 2000 the Baseline Balance Sheet Date has been, in full material compliance with all applicable terms and requirements of such Contract;
(iii. Each of the Employees listed on Schedule 3.1(p) no event has occurred or circumstance exists that (with or without notice or lapse of timeexecuted a confidentiality agreement substantially in the form attached to Schedule 3.1(m). Schedule 3.1(m) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person also lists each employment agreement between the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(ivEmployees listed on Schedule 3.1(p) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiationSeller.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
Appears in 1 contract
Sources: Asset Purchase Agreement (Aros Corp)
Contracts; No Defaults. (a) Part 3.17(aSection 3.20(a) of the Disclosure Letter Schedule contains a an accurate and complete and accurate list, and Sellers have delivered made available to Buyer true Buyers accurate and complete copies, of:
(i) each Applicable Seller Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies a Seller of an amount or value in excess of One Hundred Thousand Dollars ($25,000100,000) in any twelve (12) month period;
(ii) each Applicable Seller Contract that involves performance of services or delivery of goods or materials to one or more Acquired Companies a Seller of an amount or value in excess of One Hundred Thousand Dollars ($25,000100,000) in any twelve (12) month period;
(iii) each Applicable 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 One Hundred Thousand Dollars ($25,000100,000) in any twelve (12) month period;
(iv) each lease, rental or occupancy agreement, license, installment Real Property Lease and conditional sale agreement, and other Applicable Seller Contract affecting the ownership of, leasing of, title to, use of, license of or any leasehold or other interest in, in any real or personal property Tangible Personal Property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than One Hundred Thousand Dollars ($10,000 and with terms of less than one year100,000);
(v) each licensing agreement or other Applicable Seller Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employeesemployees relating to wages, hours and other conditions of employment;
(viivi) each joint venture, partnership, and other Applicable Seller Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company Seller with any other Person;
(viiivii) each Applicable Seller Contract containing covenants that in any way purport to restrict the business activity of any Acquired Company or any Affiliate of an Acquired Company Business or limit the freedom of any Acquired Company or any Affiliate of an Acquired Company a Seller to engage in any line of business or to compete with any Person, except for non-disclosure, proprietary information or confidentiality agreements with Third Parties entered into in the Ordinary Course of Business and which have be previously made available to Buyers;
(ixviii) each Applicable Seller Contract providing for payments to or by any Person based on sales, purchases, purchases or profits, other than direct payments for goods;
(xix) each power of attorney of a Seller that is currently effective and outstandingoutstanding with respect to the Business;
(xix) each Applicable Seller Contract entered into other than in the Ordinary Course of Business that contains or provides for an express undertaking by any Acquired Company a Seller to be responsible for consequential damages;
(xiixi) each Applicable Seller Contract for capital expenditures in excess of One Hundred Thousand Dollars ($10,000100,000);
(xii) each Government Contract or Bid;
(xiii) each written warrantySeller Contract pursuant to which a third party has licensed to a Seller any Intellectual Property that is material to the operation of the Business, guaranty, and other than licenses for “shrink wrap” or other similar undertaking commercially available software or other technology;
(xiv) each Seller Contract pursuant to which a Seller has granted a third party any rights or licenses to any material Intellectual Property of such Seller, other than non-exclusive licenses granted in the Ordinary Course of Business;
(xv) each Seller Contract pursuant to which a Seller has engaged, or entered into an engagements with any third party to develop or create any software or other technology or Intellectual Property rights for a Seller;
(xvi) each Seller Contract that is classified or that involves the use of classified Assets; and
(xvii) each written warranty and guaranty with respect to contractual performance extended by any Acquired Company a Seller 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(bSection 3.20(b) of the Disclosure Letter:
(i) Schedule, neither Seller (and no Related Person of either Seller) Shareholder has or may acquire any rights under, and neither Seller Shareholder has or may become subject to any obligation or liability under, any Contract that relates to the business of, Business or any of the assets owned or used by, any Acquired Company; and
(ii) [to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discoveryAssets.
(c) Except as set forth in Part 3.17(cSection 3.20(c) of the Disclosure LetterSchedule, each Contract identified or required to be identified in Part 3.17(aSection 3.20(a) of the Disclosure Letter Schedule comprising the Assumed Contracts is in full force and effect and is a valid and binding obligation of the Seller party thereto and, to Sellers’ Knowledge, a valid and binding obligation of the other party or parties thereto enforceable against such party or parties in accordance with its termsterms subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to tor affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law).
(d) Except as set forth in Part 3.17(dSection 3.20(d) of the Disclosure LetterSchedule:
(i) each Acquired Company Seller is, and at all times since January June 1, 2000, 2007 has been, in full material compliance with all applicable terms and requirements of each Seller Contract under which such Acquired Company has or had any obligation or liability or is being assumed by Buyer and to which such Acquired Company or any of the assets owned or used by such Acquired Company it is or was bounda party;
(ii) to Sellers’ Knowledge, each other Person that has or had any obligation or liability under any Seller Contract under which an Acquired Company has or had any rights is being assigned to Buyer is, and at all times since January June 1, 2000 2007 has been, in full material compliance with all applicable terms and requirements of such Contract;
(iii) to Sellers’ Knowledge, no event has occurred or circumstance exists that (with or without notice or the lapse of time) may contravene, conflict with, with or result in a violation or breach material Breach of, or give Sellers or any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under or to cancel, terminate, terminate or modify, any Applicable Seller Contract comprising an Assumed Contract; and
(iv) to Sellers’ Knowledge, no Acquired Company event has given to occurred or received from circumstance exists under or by virtue of any other Person, at any time since December 31, 2005, any Seller Contract that (with or without notice or other communication (whether oral or writtenthe lapse of time) regarding would cause the creation of any actualEncumbrance affecting any of the Assets, alleged, possible, or potential violation or breach of, or default under, any Contractexcept Permitted Encumbrances.
(e) Except as set forth in Section 3.20(e) of the Disclosure Schedule, no Seller has received written notice of any default by it under any Seller Contract comprising the Assumed Contracts, except for defaults that are not material.
(f) There are no existing renegotiations ofof or, to Sellers’ Knowledge, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company a Seller under current or completed Seller Contract comprising the Assumed Contracts with any Person and, having the contractual or statutory right to the Knowledge of Sellers demand or require such renegotiation and the Company, , no such Person has made written demand for such renegotiation.
(fg) The Except as set forth in Section 3.20(g) of the Disclosure Schedule, each Seller Contract comprising the Assumed Contracts relating to the sale, design, manufacture, manufacture or provision of products or services by the Acquired Companies have a Seller has been entered into in the Ordinary Course of Business and have has been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement.
Appears in 1 contract
Contracts; No Defaults. (a) Except for purchase orders for acquisition of Inventories in the Ordinary Course of Business, Part 3.17(a3.20(a) of the Disclosure Letter contains a an accurate and complete and accurate list, and and, other than with respect to oral contracts, Sellers have delivered made available to Buyer true accurate and complete copies, of:
(i) each Applicable Seller Contract that involves future performance of services or future delivery of goods or materials by one by, for or more Acquired Companies to either Seller of an amount or value in excess of Ten Thousand dollars ($25,00010,000) annually or Fifty Thousand dollars ($50,000) in the aggregate;
(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 $25,000;
(iii) each Applicable 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 in excess of $25,000Business;
(iviii) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Seller 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 personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than Ten Thousand dollars ($10,000 10,000) and with terms having a remaining term of less than one year);
(viv) each licensing agreement or other Applicable Seller Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property Assets;
(vi) each collective bargaining agreement and other Applicable Contract to or with any labor union or other employee representative of a group of employeesemployees relating to wages, hours and other conditions of employment;
(viiv) each joint venture, partnership, and other Applicable Seller Contract (however named) involving a sharing of profits, losses, costs, costs or liabilities by any Acquired Company either Seller with any other Person;
(viiivi) each Applicable Seller Contract containing covenants that in any way purport to restrict the either Seller's business activity of any Acquired Company or any Affiliate of an Acquired Company with respect to the Assumed Stores and Facilities or limit the freedom of any Acquired Company or any Affiliate of an Acquired Company either Seller to engage in any line of business or to compete with any Person;
(ixvii) each Applicable Seller Contract providing for payments to or by any Person based on sales, purchases, purchases or profits, other than direct payments for goods;
(xviii) each power Seller Contract for future capital expenditures with respect to the Assumed Stores and Facilities in excess of attorney that is currently effective and outstandingTen Thousand dollars ($10,000) in any year or Fifty Thousand dollars ($50,000) in the aggregate;
(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 $10,000;
(xiiiix) each written warranty, guaranty, and or guaranty and/or other similar undertaking with respect to contractual performance extended by any Acquired Company either Seller other than in the Ordinary Course of Business; and
(xivx) each amendment, supplement, 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither Seller (3.20(b), Shareholder has no and no Related Person of either Seller) has or may not acquire any rights under, and neither Seller Shareholder has or no and may not become subject to any obligation or liability under, any Seller Contract that relates to the business of, Assumed Stores and Facilities or any of the assets owned Assets except in connection with any sale, lease or used by, any Acquired Company; and
(ii) [disposition related to the Knowledge of Sellers and the Acquired Companies,] no officer, director, agent, employee, consultant, or contractor of any Acquired Company is bound by any Contract that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired Company, or (B) assign to any Acquired Company or to any other Person any rights to any invention, improvement, or discoveryClosure Stores.
(c) Except as set forth in Part 3.17(c3.20(c), assuming all Material Consents have been obtained:
(i) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a3.20
(a) of the Disclosure Letter 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; and
(ii) each Contract identified or required to be identified in Part 3.20
(a) and which is being assigned to or assumed by Buyer (other than the Real Property Leases for the Assumed Stores and Facilities that are not the Required Stores) is assignable by either Seller to Buyer without the consent of any other Person.
(d) Except as set forth in Part 3.17(d) of the Disclosure Letter:3.20(d):
(i) each Acquired Company Seller is, and at all times since January 1October 30, 20001998, has been, in compliance with all applicable terms and requirements of each Contract to which such Seller is a party which is being assumed by Buyer, except for any noncompliance that would not have a Material Adverse Impact;
(ii) to the Knowledge of Sellers, each other Person that has or had any obligation or liability under any Contract which is being assigned to Buyer is, and at all times since October 30, 1998, has been, in full compliance with all applicable terms and requirements of each such Contract under which such Acquired Company has or had except for any obligation or liability or by which such Acquired Company or any of the assets owned or used by such Acquired Company is or was bound;
(ii) each other Person noncompliance that has or had any obligation or liability under any Contract under which an Acquired Company has or had any rights is, and at all times since January 1, 2000 has been, in full compliance with all applicable terms and requirements of such Contractwould not have a Material Adverse Impact;
(iii) to the Knowledge of Sellers, no event has occurred or circumstance exists that (with or without subject to applicable notice or lapse of time) and cure periods may contravene, conflict with, with or result in a violation or breach Breach of, or give any Acquired Company either Seller or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or payment under, or to cancel, terminate, terminate or modify, any Applicable Contract; andContract that is being assigned to or assumed by Buyer, other than occurrences or circumstances that would not have a Material Adverse Impact;
(iv) no Acquired Company event has occurred or circumstance exists under or by virtue of any Contract that (with or without notice or lapse of time) would cause the creation of any Encumbrance affecting any of the Assets, other than Encumbrances that would not have a Material Adverse Impact; and
(v) neither Seller has given to or received from any other Person, at any time since December 31October 30, 20051998, any 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 ContractContract which is being assigned to or assumed by Buyer, other than any such violation or Breach that would not have a Material Adverse Impact.
(e) There Except with respect to the Real Property Leases, there are no pending renegotiations of, attempts to renegotiate, renegotiate or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company either Seller under current or completed Seller Contracts with any Person and, having the contractual or statutory right to the Knowledge of Sellers demand or require such renegotiations and the Company, , no such Person has made written demand for such renegotiationrenegotiations.
(f) The Contracts Each Seller Contract relating to the sale, design, manufacture, manufacture or provision of products or services by the Acquired Companies have by, for or to either Seller has been entered into in the Ordinary Course of Business of such Seller and have has been entered into without the commission of any act alone or in concert with any other Person, or any consideration having been paid or promised, that is or would be in violation of any Legal Requirement, except to the extent such violation would not have a Material Adverse Impact.
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Contracts; No Defaults. (a) Part 3.17(a) of the Disclosure Letter contains a complete and accurate list, and Sellers have delivered to Buyer true and complete copies, of:
(i) each Applicable Contract that involves performance of services or delivery of goods or materials by one or more Acquired Companies the Company of an amount or value in excess of $25,00015,000;
(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 $25,00015,000;
(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 $25,00015,000;
(iv) each lease, rental or occupancy agreement, license, installment and conditional sale agreement, and other Applicable Contract affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property (except personal property leases and installment and conditional sales agreements having a value per item or aggregate payments of less than $10,000 15,000 and with terms of less than one year);
(v) each licensing agreement or other Applicable Contract with respect to patents, trademarks, copyrights, or other intellectual property, including agreements with current or former employees, consultants, or contractors regarding the appropriation or the non-disclosure of any of the Intellectual Property 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 other Applicable Contract (however named) involving a sharing of profits, losses, costs, or liabilities by any Acquired the Company with any other Person;
(viii) each Applicable Contract containing covenants that in any way purport to restrict the business activity of any Acquired the Company or any Affiliate of an Acquired the Company or limit the freedom of any Acquired the Company or any Affiliate of an Acquired the Company to engage in any line of business or to compete with any Person;
(ix) each Applicable Contract providing for payments to or by any Person based on sales, purchases, or profits, other than direct payments for goodsgoods and sales commission arrangements for employees;
(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 any Acquired the Company to be responsible for consequential damages;
(xii) each Applicable Contract for future capital expenditures in excess of $10,00015,000;
(xiii) each currently effective written warranty, guaranty, indemnity, and or other similar undertaking with respect to contractual performance extended by any Acquired the Company other than in the Ordinary Course of Business;
(xiv) each Contract for indebtedness of the Company involving future aggregate payments of more than $10,000; and
(xivxv) 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 Acquired Companies under the Contracts, and the Acquired Companies' office where details relating to the Contracts are located.
(b) Except as set forth in Part 3.17(b) of the Disclosure Letter:
(i) neither no Seller (and and, to the knowledge of Sellers, no Related Person of either any Seller) has or may acquire any rights under, and neither no Seller has or may become subject to 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
(ii) [to the Knowledge knowledge of Sellers and the Acquired Companies,] Sellers, no officer, director, agent, employee, consultant, or contractor of any Acquired the Company is bound by any Contract with any person other than the Company that purports to limit the ability of such officer, director, agent, employee, consultant, or contractor to (A) engage in or continue any conduct, activity, or practice relating to the business of any Acquired the Company, or (B) assign to any Acquired the Company or to any other Person any rights to any invention, improvement, or discovery.
(c) Except as set forth in Part 3.17(c) of the Disclosure Letter, each Contract identified or required to be identified in Part 3.17(a) of the Disclosure Letter is is, to the knowledge of Sellers, in full force and effect and is valid and enforceable in accordance with its terms.
(d) Except To Sellers' knowledge, except as set forth in Part 3.17(d) of the Disclosure Letter:
(i) each Acquired the Company is, and at all times since January 1, 2000, has been, in full compliance with all applicable terms and requirements of each Contract under which such Acquired the Company has or had any material obligation or liability or by which such Acquired the Company or any of the material assets owned or used by such Acquired the Company is or was bound;
(ii) each other Person that has or had any material obligation or liability under any Contract under which an Acquired the Company has or had any rights is, and at all times since January 1, 2000 has been, is in full compliance with all material applicable terms and requirements of such Contract;
(iii) no event has occurred or circumstance exists that (with or without notice or lapse of time) may contravene, conflict with, or result in a violation or breach of, or give any Acquired Company or other Person the right to declare a default or exercise any remedy under, or to accelerate the maturity or performance of, or to cancel, terminate, or modify, any Applicable Contract; and
(iv) no Acquired Company has given to or received from any other Person, at any time since December 31, 2005, any notice or other communication (whether oral or written) regarding any actual, alleged, possible, or potential violation or breach of, or default under, any Contract.
(e) There are no renegotiations of, attempts to renegotiate, or outstanding rights to renegotiate any material amounts paid or payable to any Acquired Company under current or completed Contracts with any Person and, to the Knowledge of Sellers and the Company, , no such Person has made written demand for such renegotiation.
(f) The Contracts relating to the sale, design, manufacture, or provision of products or services by the Acquired Companies 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.
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